GovMax Agreement (Sarasota County Governmental Mgmt System Services Agmt) CAC NO: dO R-oo45
APPROVED:
SARASOTA COUNTY
GOVERNMENTAL MANAGEMENT SYSTEM (GOVMAX)
HOSTED APPLICATION SERVICE and LICENSE AGREEMENT
THIS HOSTED APPLICATION SERVICE and LICENSE AGREEMENT
("Agreement") is made and entered into as of the date of execution by both parties,
by and between Collier 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 license agreement to use the Governmental Management System,
hereinafter referred to as "GOVMAX" and;
WHEREAS, Licensor is willing to provide hosted application service to support
Licensee's use of GOVMAX, and;
WHEREAS, Licensor and Licensee entered into a prior license agreement dated
November 18, 2010, and;
WHEREAS, Licensor and Licensee wish to replace and supersede the prior license
agreement with the present license agreement:
NOW, THEREFORE, in consideration of the covenants, representations and
warranties set forth herein and other good and valuable consideration, the parties
hereby agree as follows:
I. SCOPE
This Agreement applies to GOVMAX and related hosting services, which
comply with current ITIL (Information Technology Infrastructure Library)
standards.
II. DEFINITIONS
A. 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.
B. 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.
C. The term "Updates" shall include bug fixes and shall mean mid-version
releases of GOVMAX where the primary version number does not
change; for example, an upgrade from version 5.0 to version 5.1, or, a
minor change which does not require any update to the version
identifier.
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D. The term "Upgrades" shall mean full version releases of GOVMAX
where the primary version number is increased by one or more; for
example, an upgrade from version 5.0 to version 6.0.
III. ACCESS AND SERVICES PROVIDED
A. 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, and providing an HTML 5 compliant Internet Browser to
access the GovMax Web application. 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.
B. Licensor shall provide services as set forth in Exhibit A - Scope of
Services, attached and made a part hereof.
IV. LICENSE REQUIREMENTS AND USES
A. Grant 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 medium of expression during any
services provided or any activities conducted by Licensor pursuant to
this Agreement) shall at all times remain the property of Licensor.
Licensor hereby states that the Licensor owns GOVMAX free of liens
and encumbrances. Licensor grants, and Licensee accepts, a non-
exclusive, non-transferable license ("the License") to use GOVMAX in
accordance with the provisions of this Agreement. GOVMAX may only
be used by Licensee's own personnel 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
Agreement.
B. Prohibited Uses. Licensee recognizes that GOVMAX was developed by
Licensor and that Licensor claims copyright protections in GOVMAX to
the fullest extent provided 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 Licensor shall have the right to either grant or deny in its sole
discretion.
C. Software and Licensing Requirements. In order to operate GOVMAX,
additional third party software licenses may be required. It is the
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responsibility of Licensee to acquire all necessary third party licenses
and to maintain sufficient numbers of such licenses to operate
GOVMAX and to satisfy all Agreement requirements by third parties.
The following represent the minimum requirements of Licensee:
1. Desktop computers and/or terminals with power and network
capacities sufficient to support high-speed internet access for
Licensee's users, and providing HTML 5 compliant Internet
Browser to access GovMax application.
2. Security at the desktop or terminal location.
3. 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. Specific information regarding
technical requirements for user-designed reports should be requested
from Licensor prior to Licensee's undertaking the report creation and
design.
D. 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.
V. TERM
The term of this Agreement shall commence upon execution of the
Agreement by both parties and shall continue for an initial term of five (5)
years, with a renewal option of up to one additional one year period subject
to written agreement of both parties.
VI. FEES
A.Annual Fee. The annual fee ("Fee") of Fifty-Four Five Hundred Fifty-
Four Dollars and Seventy-Six Cents ($54,554.76) for this Agreement
shall be due and payable on November 18. The Fee shall be increased
annually by three percent (3%) of the preceding year's annual fee.
B. 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, at Licensor's sole
discretion, a separate implementation charge and/or an increase in
the Fee as specified hereunder. Upgrades will be implemented by
Licensor on a date to be mutually agreed between the parties, but not
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less than twelve (12) months from the date the Upgrade is first made
available to Licensee.
C. Should Licensee refuse the implementation of an Upgrade, Licensor
shall continue full support under the terms of this Agreement for a
twelve (12) month period following the date the Upgrade is first made
available to Licensee.
VII. TERMINATION OF AGREEMENT
A. If the Licensee is in material breach or default, including non-payment
of any Fees, which is not cured within thirty (30) days after receipt of
the written notice of breach or default, then Licensor's Administrative
Agent may terminate this Agreement upon thirty (30) days prior
written notice.
B. If the Licensor is in material breach or default, including failure to
perform as provided in Section III which is not cured within thirty
(30) days after receipt of the written notice, then Licensee may
terminate this Agreement upon thirty (30) days prior written notice.
C. Licensee may also terminate this Agreement for its convenience and
without cause upon sixty (60) days prior written notice.
D. In the event the Licensor determines to no longer provide GOVMAX
services, Licensor shall provide written notice to Licensee at least one
year prior to discontinuing services at which point this Agreement
shall terminate. In that event, Licensor shall cooperate with Licensee
in transferring Licensee's data to Licensee.
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 Florida public records retention requirements.
Licensee shall be required to print hard copies for retention of its own
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confidential materials of data files to avoid costs of data retrievals from
Licensor.
VIII. LIMITED WARRANTY
A. Licensor certifies that it has a proprietary right and authority to
license GOVMAX 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:
1. Licensee promptly notifies Licensor in writing of the claim.
2. Licensor 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).
3. Licensee reasonably cooperates with Licensor to facilitate such
defense. Other than the certification and Limited Warranty
expressly stated herein, there are no express or implied
warranties relating to GOVMAX covered by this Agreement,
including but not limited to warranties of merchantability or
fitness for a particular purpose.
B. If GOVMAX or any portion thereof is held to constitute an infringing
product, Licensor shall allow Licensee to terminate this Agreement
and shall refund Fees to Licensee on a prorated basis for the period of
time that Licensee was unable to use GOVMAX due to an infringement
claim.
IX. LIMITATION OF LIABILITIES
Licensor shall have no liability for any loss or claims resulting from any
application of GOVMAX, 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 event, Licensor'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.
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X. DISPUTE RESOLUTION
A. In the event of a dispute or claim arising out of this Agreement, the
parties agree first to try in good faith to settle the dispute by direct
discussion. If this is unsuccessful, the parties may enter into
mediation in Sarasota County, Florida, with the parties sharing
equally in the cost of such mediation.
B. Any 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. In the
event mediation, if attempted, is unsuccessful in resolving a dispute,
the parties may proceed to litigation as set forth below.
C. The parties hereby waive all rights to trial by jury for any litigation
concerning this Agreement. Any dispute, action or proceeding arising
out of or related to this Agreement will be exclusively commenced in
the state courts of Sarasota County, Florida, or where proper subject
matter jurisdiction exists in the United States District Court for the
Middle District of Florida. Each party irrevocably submits and waives
any objections to the exclusive personal jurisdiction and venue of
such courts, including any objection based on forum non conveniens.
D. The parties hereby waive all rights to trial by jury for any litigation
concerning this Agreement.
E.This Agreement and the rights and obligations of the parties shall be
governed by the laws of the State of Florida without regard to its
conflict of laws principles.
F. Unless otherwise agreed in writing, the Licensor shall be required to
continue its services and all other obligations under this Agreement
during the pendency of claim or dispute including, but not limited to,
actual period of mediation or judicial proceedings.
XI. 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 may be 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 written notice to the other
party.
Any notices of default or termination shall be sufficient if sent by the
parties via United States certified mail, postage paid, or via a nationally
recognized delivery service, to the addresses listed below:
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Licensee's Representative: Licensor's Administrative Agent:
Name: Mark Isackson Name: Jonathan T. Small
Title: Budget Director Title: EIT Manager
3299 Tamiami
Address: Trail E. Ste. Address: 1660 Ringling Blvd.
700
Naples, FL
34112-5749 Sarasota, FL 34236
Telephone: (239) 252-8717 Telephone: 941-861-5377
Facsimile: (239) 252-4010 Facsimile: 941-861-5371
E-mail: markisacksonCc� E-Mail: jtsmalk scgov.net
colliergov.net
XII. NON-APPROPRIATION
The performance of obligations of either party under the agreement is
subject to lawfully available appropriations.
XIII. MISCELLANEOUS
A. This Agreement constitutes the sole and complete understanding
between the parties and supersedes all other contracts between
them, whether oral or written with respect to the subject matter. No
amendment, change or addendum to this Agreement is enforceable
unless agreed to in writing by both parties and incorporated into this
Agreement.
B. Force Majeure. The Licensor specifically agrees that all work
performed under the terms and conditions of this Agreement shall be
completed within the time limits as set forth herein, or as otherwise
identified in the Licensee's purchase order or specified by the
Licensee's Administrative Agent, subject only to delays caused by
force majeure, or as otherwise defined herein. "Force majeure" shall
be deemed to be any cause affecting the performance of .this
Agreement arising from or attributable to acts, events, omissions or
accidents beyond the reasonable control of the parties.
C. 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.
D. If any provision of this Agreement is deemed invalid or unenforceable,
the remaining provisions shall not be affected thereby. The terms and
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conditions of this Agreement shall prevail over any provision of any
purchase order used by Licensee to order GOVMAX.
E. The parties hereto do not intend nor shall this Agreement be
construed to grant any rights, privileges or interest to any third party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
last below written.
Licensee:
WITNESS: COLLIER COUNTY, FLORIDA
Print Name: w v-wek. Print Name: 1'P r" "'"V-_ __
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Signed B • / Z. Signed By: 1.04.__, .A., /
Date: tekkckv-"\ Title: lir ,r\
Date: 1,0\tOV-A
ATTEST
DWIGHT E. BR CLAM
r APBY: Ait-w), ► Licensor:
Attest as to Chairman's BOARD OF COUNTY COMMISSIONERS
OF SARASOTA OUNTY, LORIDA
signature only,.
BY:
A.pr ed o and legality Thomas A. Harmer, County Administrator
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DATE: Gd v1P
'W'. each,Deput 1""runty Attorney Executed by the County Administrator,
pursuant to Resolution No. 2004-095
Approve as to form and correctness:
BY: ,'
COUNTY ATTORNEY -if?
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GOVERNMENTAL MANAGEMENT SYSTEM (GOVMAX)
HOSTED APPLICATION SERVICE AND LICENSE AGREEMENT
EXHIBIT A — SCOPE OF SERVICES
A. EQUIPMENT, SOFTWARE, AND SERVICES
1. Licensor shall 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. Licensor may
from time to time engage a third-party service provider to perform
services as the need arises. Licensor will negotiate with the
Licensee all requests and invoice Licensee on a case-by-case basis
for internal or outsourced service hours.
2. Licensor shall provide hardware platform, operating system,
system application and database maintenance.
3. Licensor shall perform maintenance and operations control on
GOVMAX.
4. Licensor shall store data and conduct daily backups of database.
5. Licensor shall provide security of GOVMAX and data.
6. User training is available at Licensee's site, at Licensor's current
support rate, plus travel expenses. All travel expenses for
Licensor's trainers will be reimbursed in accordance with Section
112.061, Florida Statutes or Sarasota County Resolution No. 2015-
178, as either may be revised from time to time, 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.
B. HOSTING SUPPORT SERVICES
Licensor's Data Center shall provide the following hosting support
services:
1. 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"). Emergency Support is accessed by telephone at (941)
861-7100.
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EXHIBIT A — SCOPE OF SERVICES
2. 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.
3. Database Administration Services - On-call database
administration teams will support systems located within the
Licensor's Data 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.
4. Standard System Recovery Services - Licensor shall provide the
following data and system recovery services:
a. Use disk mirroring and off-site storage 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.
b. 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.
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EXHIBIT A — SCOPE OF SERVICES
c. 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. Archive Storage Services - Licensor shall provide the following
archive storage services:
a. Five (5) years of adopted archives will be maintained on the
GovMax production server. Adopted archives older will be
moved to a secondary server for storage that will be
accessible for pulling reports.
b. If Licensee needs to access an older adopted archive, the
Licensee will open a ticket to request a copy be updated on
the production server. Cost for support is one (1) hour at
the current rate. When the request is made, a completion
date will be determined so that the adopted archive can be
removed from the production server.
c. GovMax adopted archives take up considerable space and
resources so this move will improve the performance of the
production server.
C. APPLICATION SUPPORT SERVICES
Licensor shall provide the following support services:
1. GOVMAX will be available on a supported basis as described
in this Section. Licensor shall provide help desk support to
Licensee's Representative, or designee, and up to three (3)
system administrators during standard hours (Monday
through Friday, 8:00 a.m. to 5:00 p.m., Eastern Standard
Time, (excluding Licensor's observed 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.
2. GOVMAX will be available outside of business hours on an
unsupported basis. Service requests that arise outside of
business hours shall be addressed the following business
day. Additional support can be made available outside of
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EXHIBIT A — SCOPE OF SERVICES
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.
3. Any additional related services including custom reports will
be available from Licensor or Licensor's third-party service
provider, once specific requirements are provided by
Licensee. Estimates for any additional related services will
be provided at Licensor's then current rates.
4. Code Deployment Services: Unless an emergency
deployment is required, all code changes will be batched
and deployed using the following schedule:
a. All code changes are submitted to the Sarasota
Change Advisory Board (CAB) on Tuesdays.
b. The open maintenance window for production
deployment is scheduled for 12:01 a.m. - 10:00 a.m.,
Eastern Standard Time, on Sundays. Notification will be
given in advance if deployment is to be made outside of the
open maintenance window.
(END EXHIBIT A)
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