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HomeMy WebLinkAbout2009-097 IT - Intelligent Information Systems, Inc. - Addendum to Software Maintenance and Support Agreement=~' s ~~= - lol~lo~ - 4 ADDENDUM TO SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT This Addendum to Software Maintenance and Support Agreement (this "Addendum") is made effective as of November 10, 2009 (the "Addendum Effective Date"), by and between Orange County, a North Carolina county ("County"), and Intelligent Information Systems, Inc., a North Carolina corporation ("IIS"). Capitalized terms used herein and not otherwise defined shall have the meanings given to such terms in the Support Agreement (as defined below). RECITALS WHEREAS, County and IIS are parties to that certain Software Maintenance and Support Agreement dated as of November 10, 2009 (the "Support Agreement"); and WHEREAS, County desires IIS to expand the level and amount of support provided under the Support Agreement; and WHEREAS, In consideration of the premium support fee paid to IIS hereunder, and in accordance with the terms of this Addendum, IIS agrees to provide the support services described hereunder beginning when the Software is put into production. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to amend the Support Agreement as follows: 1. Services (a) IIS will provide County with up to 380 total hours per year (up to 95 hours per quarter during the annual term of Support and Maintenance) for prioritized correction of Errors, assistance relating to maximizing use or performance of the Software, design and development of. Software enhancements, on-site services, and services provided after normal Customer Response Center hours as defined in the Support Agreement (after-hour services will be counted with a 1.5 multiplier on hours used). The parties agree that travel time between IIS and County is chargeable under this Addendum. (b) The parties will meet in person or by phone on a weekly basis to as necessary create, review, prioritize, clarify and amend a list of mutually agreed projects and tasks provided by IIS under this Agreement and to discuss the status of pending projects and tasks. The parties may by mutual agreement exceed the hourly cap in any given quarter. (c) Hours not used at the end of an annual term will roll over to the next annual term if the Support Agreement and this Addendum is renewed. If the Support Agreement or this Addendum is not renewed, however, County will not be entitled to any refund of any unused hours. 2. Fees The fee for services provided under this Addendum is $40,000, and is due and payable in four equal quarterly payments, beginning on the Production Date. Payment terms are net 30 days. This fee is in addition to the fees set forth in the Support Agreement. Orange Support Addendum 110409.doc Page 1 3. Effect of Addendum This Addendum is hereby explicitly made a part of the Support Agreement. Any conflict between any term or provision in the Support Agreement and a term or provision in this Addendum shall be resolved in favor of this Addendum. 4. Severability Every provision of this Addendum and the Support Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Addendum of the Support Agreement. 5. Counterpart Execution This Addendum may be executed in any number of counterparts with the same effect as if all of the parties had signed the same document. All fully executed counterparts shall be construed together and shall constitute one and the same agreement. All .other terms and conditions of the Support Agreement not expressly amended herein shall remain in full force and effect. This Addendum to the Support Agreement is signed below by the duly authorized representatives of the parties. AGREED TO: ORANGE CO ~_ f ,: By. -_ ,~~ Name: ~~~ Title: ~ ~b ~- Date: (, l f ~-~ ~ ~ INTELLIGEN FORMATIO STEMS, INC. By: ,/'y, Name. e ~ / ~' ~~ K 9'f~ Title: ~Lrc G ~KS ~~r~, '-~' Date: ~ I' I (- ~ ~( Orange Support Addendum 110409.doc Page 2 This instrument has been pre-audited in the manner required by the Local Governme,,gt Budget and Fiscal Control Act Gary Fiu al Services Director :.. ~~ SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT This Software Maintenance and Support Agreement (this "Agreement") is made and entered into as of November 10, 2009 (the "Effective Date") by and between Intelligent Information Systems, Inc., a North Carolina corporation having a place of business at 2810 Meridian Parkway, Suite 160, Durham, North Carolina 27713 ("IIS") and Orange County ("County"), a North Carolina county with a mailing address of its executive offices at P O Box 8181, Hillsborough, NC 27278. In consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Background 1.1. County has acquired a license to certain software known as NCPTS from NCACC pursuant to the Property Tax Software License Agreement between NCACC and County (the "License Agreement"). The specific software version(s) acquired by County and supported under this Agreement ("Software") is specified in Exhibit A hereto. 1.2. County desires to retain IIS to provide support and maintenance services for the Software ("Services"), and IIS desires to provide such services to the County, in accordance with the terms of this Agreement. 2. Definitions. In addition to the definitions in the License Agreement, IIS and County agree to the following definitions. 2.1. "Error" means a failure of the Software to perform in accordance with its published documentation. 2.2. "Hot Fix" means a software patch that resolves a Critical Severity issue and is delivered prior to the normal System Release. 2.3. An "Issue" shall mean a reported Error or other request for assistance under this Agreement to be tracked for completion within the scope of this Agreement. 2.4. A "Severity Level" shall mean the level of importance for all Issues as reasonably established by the County. The Severity Level designations shall consist of the following: (a) "Critical Severity" Error means an Error that materially impedes the operation of the entire Software or major portions of the County's business operation, and a workaround is not available; (b) "Major Severity" Error means an Error that causes a substantial impact on a major business process; however a workaround is available or the function can be completed on a limited basis; (c) "Minor Severity" Issue means an Error that causes a minor impact on a business process or a requested enhancement. Page 1 2.5. A "System Release" shall include Error corrections and may include functional, processing, and/or cosmetic enhancements. System Releases shall be delivered based upon a mutually agreed schedule. 2.6. "Acknowledgement Time" is the elapsed time from County's reporting of an Issue until IIS' acknowledgement of receipt of the reported Issue. 2.7. "Resolution Time" is the elapsed time from County's submission of an Issue and delivery of associated information until either (1) IIS delivers the a fix or reasonable workaround for the reported Error, or supplies the requested information for Issues not involving Errors, or (2) in the event such delivery is not reasonably feasible, IIS delivers aplan/schedule for the support. 2.8. "Release Acceptability" is a quality measurement for a System Release, defined as the total number of Issues addressed in such System Release without a reported defect within 30 days of delivery, divided by the total number of Issues that are purported to be addressed by such System Release. For example, if 90 Issues are closed without defect (10 defects are reported) out of a total of 100 Issues delivered in a Support Release, the Release Acceptability is 90/100 = 90%. 3. Services. IIS shall provide the support and maintenance services specified in Exhibit A hereto. 4. Fees. 4.1. The annual support and maintenance fee for the initial term is set out on Exhibit A, which fee shall be due and payable within thirty (30) days of the date on which the Software is put into production use by the County (the "Production Date"). Fees for renewal terms shall be IIS' then current standard annual fee for maintenance of the Software, which fee shall be payable in advance in four equal quarterly payments; provided that in no event shall the maintenance fee increase by a cumulative amount of more than ten percent (10%) per year (unless the Country has acquired additional Software modules or has increased its number of real property parcels into a higher tier, as described in Exhibit A). The first quarterly fee may be invoiced thirty (30) days prior to the expiration of the previous term. 4.2. Where on-site support is requested by County, a travel charge may be made by IIS. 4.3. County understands that if County terminates this Agreement and then wishes at a later date to resume receiving services under this Agreement, County will be required to pay IIS the entire maintenance fees for the period of discontinuance plus the maintenance fee for the period then commencing. 4.4. County shall be responsible for payment of all federal, state, local and other taxes (including, but not limited to, sales, use and property taxes) related to this Agreement, excluding any taxes based upon IIS' income, unless County is tax exempt and provides a tax certificate of exemptions. 4.5. IIS acknowledges that a "nonappropriation" may occur when the County is unable to secure or allocate sufficient funds in its operating budget to fulfill its financial obligations under this Agreement. If a nonappropriation occurs during the term of the Agreement, County may terminate the Agreement at the end of the then-current fiscal period ("Termination Date") without incurring any termination liability. County will not be obligated for payments for any fiscal period after the Termination Date. County will give IIS written notice of any termination under this section at least 30 days before the Termination Date. At IIS' written request, County will promptly provide supplemental documentation about the non-appropriation. Notwithstanding the foregoing, County agrees to take all necessary action to budget and secure any funds required to fulfill its contractual obligations for each fiscal year during the term of the Agreement, including the Page 2 exhaustion of all available administrative appeals if funding is initially denied. 5. Confidentiality 5.1. "Confidential Information" means any information or data (including without limitation any formula, pattern, compilation, program, device, method, technique, or process) that is disclosed by one party (a disclosing party) to the other party (a receiving party) pursuant to this Agreement that is identified in writing as confidential or that would reasonably be recognized as confidential. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; (c) was previously known by the receiving party as shown by its written records; or (d) was independently developed by the receiving party as shown by its written records. 5.2. A receiving party agrees: (a) to hold the disclosing party's Confidential Information in strict confidence; and (b) use the disclosing party's Confidential Information solely in connection with the provision of Services under this Agreement. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure. 5.3. Upon the termination or expiration of this Agreement, the receiving party will return to the disclosing party all the Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party. The provisions of this Section 5 shall survive any termination of this Agreement. 6. Term and Termination 6.1. This Agreement shall be in effect for an initial term beginning on the Effective Date and continuing for one (1) year from the Production Date unless earlier terminated pursuant to this Section 6; provided that IIS' obligation to provide Services hereunder shall not commence until the Production Date. After the end of the initial term, this Agreement will automatically continue for up to five (5) successive annual renewal terms unless either party provides the other party written notice at least sixty (60) days prior (or, if County does not receive continued appropriation by the applicable Country Board of Commissioners or other funding source, at least five (5) days prior) to the end of the then-current term of its intent to terminate this Agreement. Fees for renewal terms are due as set forth in Section 4.1 above. If County does not pay the support fee for a renewal term within thirty (30) days after the date of invoice, then IIS may in its discretion suspend the delivery of support services or terminate this Agreement. 6.2. Either party may terminate this Agreement or if the other party materially breaches this Agreement and such breach is not cured, or an acceptable plan for resolving the breach is not put in place, within thirty (30) days after written notice identifying specifically the basis for such notice. 6.3. The terms provided in Sections 2, 5, 7, 8.1, 8.3, 9 and 10 of this Agreement shall survive any termination of this Agreement. For the avoidance of doubt, the parties agree that termination of this Agreement shall not result in termination of the License Agreement. 7. Warranty 7.1. IIS represents that it has the requisite knowledge, expertise and experience necessary to perform Services under this Agreement. County agrees to notify IIS of any breach of this representation within thirty (30) days after completion of the Services. 7.2. County represents that it has obtained or will obtain prior to IIS' commencement of the Services all licenses and consents from third party vendors authorizing access to software and/or technical information owned by such vendors and licensed to County, as required in order Page 3 for IIS to perform the Services. 7.3. Each party represents that it has received all necessary authority and approvals to enter into this Agreement, and that the negotiation and performance of this Agreement is not in conflict with any other agreement entered into by such party. 7.4. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF USAGE IN THE TRADE OR BY COURSE OF DEALING. ALL WARRANTIES RELATING TO THE NCPTS SOFTWARE SHALL BE AS SET FORTH IN THE LICENSE AGREEMENT. 8. Liability and Insurance 8.1. All liability arising under or relating to the subject matter of this Agreement, whether under theory of contract, tort (including negligence), or otherwise, shall be limited to direct damages. Neither party, including its officers, directors, employees, agents, representatives, and subcontractors, shall have any liability to the other party or to any third party for any incidental, punitive, indirect, special or consequential damages, including but not limited to lost profits, loss of data, cost of recreating lost data, interruption of business, or costs of procurement of substitute goods or services, even if advised of the possibility of such damages, whether under theory of warranty, contract, tort (including negligence), strict liability or otherwise. The aggregate liability of IIS under this Agreement shall not exceed the total fees paid by County to IIS with respect to the annual term at issue. Nothing in this Agreement creates an obligation by County to pay any damages in excess of those amounts legally available to satisfy County's obligations under this Agreement. No section of this Agreement is intended to create a waiver of County's rights or privileges as a sovereign entity. 8.2. IIS will carry and maintain throughout the period of this Agreement, at IIS' sole expense, insurance including specifically general liability, and if applicable, worker's compensation insurance, to cover the obligations of IIS set forth herein, or the acts of IIS performed hereunder. Certificates of such insurance shall be furnished by IIS to County within ten (10) business days after execution of this Agreement. Such certificates shall require the insurer issuing the underlying policy to provide County with a minimum of thirty (30) days notice prior to modification or cancellation of said policy. IIS agrees that such insurance shall be primary, regardless of any other insurance coverage, which County may procure for its own benefit. 8.3. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and IIS' compensation for the Services reflects such allocations. 9. Dispute Resolution 9.1. The parties agree to attempt to resolve any controversy, claim or dispute ("Dispute") arising out of or relating to this Agreement by means of good faith discussion and negotiation. In the event that a Dispute cannot be resolved at the project level, then designated senior executives of the parties shall meet and enter into further good faith settlement negotiations. If such senior executives cannot resolve the Dispute within thirty (30) days, the parties agree to try in good faith to settle the dispute by mediation administered by a mutually agreed third-party mediator before resorting to litigation. Any legal proceeding arising out of or relating to this Agreement or its alleged breach will be brought solely in the a state court in Orange Country, to the exclusion of any other forum, and the parties hereby expressly agree and submit to the exclusive jurisdiction of such courts. Page 4 9.2. This Agreement shall be interpreted, construed, and governed by the laws of the State of North Carolina, without regard to conflict of law provisions. 10. Miscellaneous 10.1. During the term of this Agreement and for a period of one (1) year following the termination or expiration of this Agreement for any reason, neither party shall employ nor offer or seek to employ, either directly or indirectly, any person who, at that time or within the last six (6) months, was either employed or engaged as an independent contractor by the other party. 10.2. The parties are and intend to be independent contractors with respect to the services contemplated hereunder. IIS agrees that neither it nor its employees or contractors shall be considered as having an employee status with County. All persons employed by IIS to perform Services shall be subject to the exclusive direction and control of IIS. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created. 10.3.. Neither party shall be liable for any failure or delay in the performance of its obligations due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, accident, fire, explosion, flood, hurricane, severe weather or other act of God. Each party shall promptly notify the other party in the case of an event arising under this Section. 10.4. This Agreement constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral agreements with respect to its subject matter. Except as provided expressly herein, this Agreement shall not be modified, amended, or in any way altered except in a written amendment executed by both of the parties. No waiver of any provision of this Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. 10.5. Headings used in this Agreement are for convenience of reference only and shall not be deemed a part of this Agreement. 10.6. Neither party may assign this Agreement or any right hereunder without the prior written consent of the other party; provided however that IIS may assign this Agreement to the acquirer of all or substantially all of its business, so long as such acquirer agrees in writing to be bound by the terms of this Agreement and notice is provided to County within ten (10) days of such transfer of any new entity, address and/or contact(s). Any attempted assignment not authorized herein shall be null and void. 10.7. All notices required or permitted hereunder shall be in writing, delivered personally; by certified or registered mail, or by overnight delivery by an established national delivery service at the respective addresses first set forth above. Notices to IIS shall be sent to the attention of Vice President, a-Gov Solutions or to such other person designated by IIS in a written notice to County. Notices to County shall be sent to the attention of Tax Administrator or to such other person designated by County in a written notice to IIS. All notices shall be deemed effective upon personal delivery or when received if sent by certified or registered mail or by overnight delivery. Page 5 IN WITNESS THEREOF, the parties have caused this Agreement to be signed and delivered by its duly authorized officer or representative. ORANGE COU By: ~. Name: Title: ~ ~ ~~ ~~ Date: L I I a 16 9 INTELLIG T INFORMATI SYSTEMS, INC. By: Nam ~'l GJ~ h g ~C~ Title: ~/r ~G ~~Si ath.,'f Date: /l--((- Q~ Page 6 EXHIBIT A SUPPORT SERVICES AND FEES 1. Software. The Software supported under this Agreement is NCPTS Billing & Collections. 2. General Performance Duties of IIS. IIS shall: 2.1. Use diligent efforts to correct Errors and provide reasonable workarounds in the order of priority as specified by the County. As part of this service, IIS will also correct defects in data that are not caused by user or third-party software error, e.g., those caused by Errors or IIS batch run or data migration errors. 2.2. Provide reasonable assistance related to maximizing the use or the performance of the Software, including assisting users with the proper use of the Software and with data issues related to queries and report writing. 2.3. Maintain a Customer Response Center ("CRC") Monday through Friday (excluding normal business holidays) from 8:00 AM until 5:00 PM Eastern Time for the reporting, execution, and management of Services. 2.4. Use reasonable efforts to assist the County and any third party software vendor in implementing and using an interface to the Software based upon published IIS interface specifications. 3. Staffing Requirements of IIS. 3.1. IIS will provide personnel with adequate skill and training as shall be required to meet its obligations and deliver the Services as described in this Agreement. IIS will remove or replace personnel upon County's request if the personnel fail to deliver Services described in the Agreement to the County's satisfaction. 4. Reporting Requirements of IIS. IIS will provide aweb-based Issue entry and service status system ("NITS", including any successor system thereto). This system will support: 4.1. Submission of Issues 4.2. Tracking of Issue priorities and status (including opened and closed issues) 4.3. Access to Issue resolution database 5. Meetings Arranged by IIS. IIS will facilitate and provide reports for the following meetings: 5.1. Monthly prioritization meetings by telephone to review and prioritize the County's Issues. 5.2. Up to four planning meetings at IIS to collectively review and plan how support services are delivered to all support customers for the Software. These meeting will be scheduled on mutually agreeable dates and will include other NC county customers of the Software. 5.3. Such additional meetings as are mutually agreed and scheduled and are at no additional charge. Orange Standard Support Agreement 110409.doc Page 7 6. System Releases 6.1. Not less than four System Releases per year will be delivered to County on mutually agreeable dates, unless otherwise mutually agreed. 6.2. System Releases will be delivered using the following approach: (a) Issue Cut Off -Cut off date for reporting Issues to be included in the System Release is five weeks prior to the scheduled Acceptance Testing Release. (b) Issue List -List of Issues to be included in the System Release provided to the County in NITS prior to the scheduled Acceptance Testing Release. (c) Acceptance Testing Release -System Release is provided to the County for installation and acceptance testing. (d) Production Decision -Participating Counties collectively make decision to accept or reject the System Release within four weeks after Acceptance Testing Release. (e) Production -IIS puts System Release into production within two weeks of collective acceptance. 6.3. Technology Upgrades. IIS will add support in System Releases for minor new versions of third party database software as soon as commercially practicable. 6.4. System Releases will have a Release Acceptability of 92% or higher. 7. Timing Standards of Performance by IIS. IIS shall meet the following timing standards in connection with the Repair and Support Services: 7.1. Resolution Time. Critical Severity Issues will be resolved using Hot Fixes to be delivered within 3 business days of the Issue being reported; provided that if the Critical Severity Issue is not capable of resolution within that time frame, IIS shall provide to the County a description of the Hot Fix plan and time frame for resolving the Issue. 7.2. Acknowledgement Time. (a) In the event of a Critical Severity Issue IIS will respond within one business hour. (b) In the event of a Major Severity Issue IIS will response within one business day. (c) IIS shall respond to telephone and a-mail queries about additional Issues, services, and other matters within 2 business days of the receipt of the inquiry from the County. 8. General Performance Duties of the County. In addition to the obligations in the License Agreement, the County shall meet or cause the Users to meet the following obligations in connection with the Services: 8.1. Report Issues in NITS. Orange Standard Support Agreement 110409.doc Page 8 8.2. Provide timely user acceptance testing for Hot Fixes and System Releases prior to putting them into production. 8.3. Put System Releases into production within two weeks of collective acceptance. 8.4. Participate in scheduled support review and planning meetings. 8.5. Respond to reasonable requests for information and clarification regarding Services to be performed. 8.6. Appoint a named Support Coordinator to provide first-level maintenance and support services to the Users and coordinate second-level support with IIS. First level maintenance and support includes the provision of telephone and a-mail support to Software users and the implementation of documented fixes and workarounds. 8.7. Provide system administration services to keep the Software in good working order including monitoring security configuration, managing allocation of user names and passwords, configuring and monitoring automated batch jobs, monitoring disk space and other resource use, and performing backups. 8.8. Provide database administration services that provide for data security enforcement, database performance, and backup and recovery 8.9. Provide data loading and extraction services related to required data imports or extracts from the Software. 8.10. Provide and maintain IIS access to a current test environment. All such IIS access shall be consistent with County's security policy, as communicated to IIS from time to time. 9. Services Not Included in this Agreement. The following services can be provided by IIS at additional cost and are not provided in this Agreement. 9.1. First-level maintenance and support services to the Users. 9.2. Administration services to keep the Software and related hardware, third-party software and other IT infrastructure in good working order including monitoring security configuration, managing allocation of user names and passwords, configuring and monitoring automated batch jobs, monitoring disk space and other resource use, and performing backups. 9.3. Database administration services that provide for data security enforcement, database performance, and backup and recovery. 9.4. Data loading and extraction services related to required data imports or extracts from the Software. 9.5. Report writing. 9.6. Data migration-related issues for situations where IIS was not responsible for the data migration. 9.7. Extended service hours beyond the normal CRC hours. Orange Standard Support Agreement 110409.doc Page 9 9.8. On-site services (unless determined by IIS to be necessary for addressing a Critical Severity Issue). 9.9. Change requests and enhancements. 9.10. Business and technical consulting. 9.11. Technology upgrades, other than those contained under section 6.3 Technology Upgrades. 10. Reporting and Approvals. The Support Coordinator for the County shall be Tax Administrator. The Support Coordinator for IIS shall be Sanjay Chouhan. The delivery and implementation of all Hot Fixes must be approved by both Support Coordinators. 11. Fee Schedule. The Services will be provided by IIS for an annual fee, based upon the Software modules in production and Client's total number of real property parcels as of the Effective Date and subsequently as of each annual renewal date, as follows. Software Modules Number of Real Pro ert Parcels Annual Fee B&C Tier 1: equal to or greater than 300,000 $150,000 real ro ert arcels Tier 2: greater than 120,000 and less $75,000 than 300,000 real ro ert arcels Tier 3: equal to or less than 120,000 $40,000 real ro ert arcels LRC Tier 1: equal to or greater than 300,000 $150,000 real ro ert arcels Tier 2: greater than 120,000 and less $75,000 than 300,000 real ro ert arcels Tier 3: equal to or less than 120,000 $40,000 real ro ert arcels IIS will invoice Client for four equal quarterly payments, beginning on the Production Date. Payment terms are net 30 days. If, as of the beginning of any renewal term, the applicable number of real property parcels for either B&C or LRC, or both, has changed enough to move into a new tier, then the annual support fee will be changed on a graduated basis to the new tier amount, in that %2 of the change will apply in the renewal term and the remaining % of the change will apply in the following renewal term. Client agrees to provide IIS with access to Client's systems upon IIS' request to audit and confirm Client's total number of real property parcels. Orange Standard Support Agreement 110409.doc Page 10 This instrument has been pre-audited in the manner required by the Local Governme~at Budget and Fiscal Control Act Gary Huhy~ reys ~tna~cial Services Director ~~. ~~ IMPLEMENTATION SERVICES AGREEMENT This Implementation Services Agreement (this "Agreement") is made and entered into as of November 10, 2009 (the "Effective Date") by and between Intelligent Information Systems, Inc., a North Carolina corporation having a place of business at 2810 Meridian Parkway, Suite 160, Durham, North Carolina 27713 ("IIS") and Orange County ("County"), a North Carolina county with a mailing address of its executive offices at P O Box 8181, Hillsborough, NC 27278. In consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Background 1.1. County desires to implement the NCACC Collaborative Property Tax System ("NCPTS"), which is jointly owned by the North Carolina Association of County Commissioners ("NCACC") and IIS. 1.2. County has agreed to license NCPTS from NCACC pursuant to the Property Tax Software License Agreement between NCACC and County (the "License Agreement"). 1.3. County desires to retain IIS to provide implementation services for NCPTS, and IIS desires to provide such services to the County, in accordance with the terms of this Agreement. 1.4. This Agreement will serve as a Master Agreement, under which IIS may perform additional agreed services to County, whether related or unrelated to NCPTS. 2. Services 2.1. IIS agrees to provide installation, implementation, configuration, consulting, development, and/or training services set forth in one or more agreed Schedules (the "Services"). Schedule No. 1 is attached hereto and incorporated by reference. The parties may from time to time agree to additional Schedules, each of which, when signed by an authorized representative of each party, will be deemed a part of and incorporated into this Agreement. Each Schedule will identify responsibilities of each party, and the parties shall work together cooperatively to complete their respective responsibilities. All goods and/or services shall be provided in a competent, workmanlike and professional manner. 2.2. The parties may by mutual written agreement, modify the Services or any associated Project Plan or other project document by means of an agreed Change Order. The Change Order will address as necessary changes to the requirements, schedule or cost of the Services. No changes to the Services will be effective unless authorized in a written Change Order agreed by the parties. For the avoidance of doubt, changes made to address errors in the Work Product that are made by IIS pursuant to the acceptance or warranty provisions of this Agreement shall not constitute Change Orders under this Agreement. 2.3. Unless otherwise agreed in writing by the parties, County shall have sole responsibility for acquiring and maintaining its own technology environment, including but not limited to client workstations, operating systems, servers, Internet access, local area networks, and wide area networks. -1- 2.4. In the event that IIS develops any custom software, documentation or other materials under this Agreement relating to NCPTS ("Work Product"), then County acknowledges and agrees that ownership of the Work Product shall be pursuant to the terms of the License Agreement, and that such Work Product shall be deemed licensed to County at no additional charge under the terms of the License Agreement. 3. Fees and Expenses 3.1. County shall pay IIS the fees set forth in the applicable Schedule in accordance with the terms and conditions therein. Unless otherwise set forth in the Schedule, IIS shall invoice County on a milestone basis upon acceptance of deliverables, and payments are due within thirty (30) days of receipt of invoice. In the event that County, in good faith, disputes any invoiced amounts, County shall notify IIS in writing prior to the payment due date identifying in detail the reason why such charges are disputed. County may delay payment on disputed charges (but only disputed charges) pending resolution of the dispute. 3.2. To the extent authorized and set forth in the applicable Schedule, County agrees to reimburse IIS for reasonable out-of-pocket expenses incurred in the performance of Services, including but not limited to travel, lodging, meals, postage, freight, and printing. All travel-related expenses must be approved in advance by County Manager and IIS's President, or their designees, and, subject to budgeted funds, a purchase order may then be issued by the County to cover such charges. 3.3. County shall be responsible for any and all applicable taxes, however designated, incurred as a result of or otherwise in connection with this Agreement, including but not limited to state and local privilege, excise, sales, and use taxes and any taxes or amounts in lieu thereof paid or payable by IIS, but excluding taxes based upon the net income of IIS. 3.4. The maximum financial exposure to the County for services provided hereunder shall not exceed $634,375, plus any additional payments under Section 2 of Schedule No. 1, subject to annual appropriation and other nonfunding events per Section 5.5 below. 4. Confidentiality 4.1. "Confidential Information" means any information or data (including without limitation any formula, pattern, compilation, program, device, method, technique, or process) that is disclosed by one party (a disclosing party) to the other party (a receiving party) pursuant to this Agreement that is identified in writing as confidential or that would reasonably be recognized as confidential. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; (c) was previously known by the receiving party as shown by its written records; or (d) was independently developed by the receiving party as shown by its written records. 4.2. A receiving party agrees: (a) to hold the disclosing party's Confidential Information in strict confidence; and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the Confidential Information. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure. 4.3. Upon the termination or expiration of this Agreement, the receiving party will return to the disclosing party all the Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party. The provisions of this Section 4 shall survive any termination of this Agreement. -2- 5. Term and Termination 5.1. As a master agreement, this Agreement shall remain in place until terminated as set forth herein. 5.2. Either party may terminate this Agreement or any Schedule if the other party materially breaches this Agreement and such breach is not cured, or an acceptable plan for resolving the breach is not put in place, within thirty (30) days after written notice identifying specifically the basis for such notice. 5.3. County may terminate this Agreement or any Schedule by providing at least thirty (30) days prior written notice to IIS, in the event that county, state, or federal funds are withdrawn. 5.4. The terms provided in Sections 4, 5, 6, 7.1, 8 and 9 of this Agreement shall survive any termination of this Agreement. For the avoidance of doubt, the parties agree that termination of this Agreement shall not result in termination of the License Agreement. In the event of termination, unless such termination is due to a material breach by IIS, County agrees to pay IIS for: (a) all Services rendered that have been completed and accepted and expenses incurred up to the date of termination and (b) on a pro-rata basis based on a percentage of completion for Services and Deliverables in process at the time of termination. 5.5. IIS acknowledges that a "nonappropriation" may occur when the County is unable to secure or allocate sufficient funds in its operating budget to fulfill its financial obligations under this Agreement. If a nonappropriation occurs during the term of the Agreement, County may terminate the Agreement at the end of the then-current fiscal period ("Termination Date") without incurring any termination liability. County will not be obligated for payments for any fiscal period after the Termination Date. County will give IIS written notice of any termination under this section at least 30 days before the Termination Date. At IIS' written request, County will promptly provide supplemental documentation about the non-appropriation. Notwithstanding the foregoing, County agrees to take all necessary action to budget and secure any funds required to fulfill its contractual obligations for each fiscal year during the term of the Agreement, including the exhaustion of all available administrative appeals if funding is initially denied. 6. Warranty 6.1. IIS represents that it has the requisite knowledge, expertise and experience necessary to perform Services under this Agreement. IIS further represents that the Services performed and the Deliverables provided shall materially conform to the requirements in this Agreement and any specifications provided in the attached Schedule, including but not limited to any third- party software integration specifications and requirements set forth in this Agreement and the attached Schedule. County agrees to notify IIS of any breach. of the representations in this Section 6.1 within thirty (30) days after completion of the Services. County's sole remedy for breach of this representation shall be for IIS to reperform the Services at issue at no charge to County; provided that if IIS breaches this representation for the same Services more than three (3) times, then County will have the right to terminate this Agreement for breach without further opportunity to cure. In the event of any disagreement between the parties with regard to any breach of this representation, the parties agree to follow the dispute resolution process in Section 8.1 below. 6.2. County represents that it has obtained or will obtain prior to IIS' commencement of the Services all licenses and consents from third party vendors authorizing access to and/or modifications of software and/or technical information owned by such vendors and licensed to County, as required in order for IIS to perform the Services. -3- 7 6.3. Each party represents that it has received all necessary authority and approvals to enter into this Agreement, and that the negotiation and performance of this Agreement is not in conflict with any other agreement entered into by such party. 6.4. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF USAGE IN THE TRADE OR BY COURSE OF DEALING. ALL WARRANTIES RELATING TO THE NCPTS SOFTWARE SHALL BE AS SET FORTH IN THE LICENSE AGREEMENT. Liability and Insurance 7.1. All liability arising under or relating to the subject matter of this Agreement, whether under theory of contract, tort (including negligence), or otherwise, shall be limited to direct damages. Neither party, including its officers, directors, employees, agents, representatives, and subcontractors, shall have any liability to the other party or to any third party for any incidental, punitive, indirect, special or consequential damages, including but not limited to lost profits, loss of data, cost of recreating lost data, interruption of business, or costs of procurement of substitute goods or services, even if advised of the possibility of such damages, whether under theory of warranty, contract, tort (including negligence), strict liability or otherwise. The aggregate liability of IIS under any Schedule shall not exceed the total fees paid by County to IIS with respect to the Schedule. Nothing in this Agreement creates an obligation by County to pay any damages in excess of those amounts legally available to satisfy County's obligations under this Agreement. No section of this Agreement is intended to create a waiver of County's rights or privileges as a sovereign entity. 7.2. IIS will carry and maintain throughout the period of this Agreement, at IIS' sole expense, insurance including specifically general liability, and if applicable, worker's compensation insurance, to cover the obligations of IIS set forth herein, or the acts of IIS performed hereunder, including the following. Comprehensive Automobile Liability Insurance: Bodily Injury/Property Damage Per Occurrence $500,000 General Liability Insurance: Bodily Injury/Property Damage Each Occurrence $1,000,000 Bodily Injury/Property Damage Aggregate $1,000,000 Personal Injury Per Person $1,000,000 Personal Injury Aggregate $1,000,000 Umbrella Insurance: Limit of Liability Aggregate $1,000,000 Errors and Omissions Insurance: Professional Liability $1,000,000 Certificates of such insurance shall be furnished by IIS to County within ten (10) business days after execution of this Agreement. Such certificates shall require the insurer issuing the underlying policy to provide County with a minimum of thirty (30) days notice prior to modification or cancellation of said policy. IIS agrees that such insurance shall be primary, -4- regardless of any other insurance coverage, which County may procure for its own benefit. 7.3. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and IIS' compensation for the Services reflects such allocations. 7.4. The terms of this Agreement may only be amended with a written Contract Amendment executed by both Parties. IIS's proposals should also include the name of the company's contact person and mailing information. 8. Dispute Resolution 8.1. The parties agree to attempt to resolve any controversy, claim or dispute ("Dispute") arising out of or relating to this Agreement by means of good faith discussion and negotiation. In the event that a Dispute cannot be resolved at the project level, then designated senior executives of the parties shall meet and enter into further good faith settlement negotiations. If such senior executives cannot resolve the Dispute within thirty (30) days, the parties agree to try in good faith to settle the dispute by nonbinding mediation administered by a mutually agreed third- party mediator before resorting to litigation. If the parties do not reach such solution within a period of sixty (60) days after engagement of a mediator, then, either party may initiate a law suit exclusively in a state court located in Orange County, and the parties agree to waive any objection to the personal jurisdiction of such courts. The venue for any mediation on shall be in Orange County. 8.2. This Agreement shall be interpreted, construed, and governed by the laws of the State of North Carolina, without regard to conflict of law provisions. 9. Miscellaneous 9.1. During the term of this Agreement and for a period of one (1) year following the termination or expiration of this Agreement for any reason, neither party shall employ nor offer or seek to employ, either directly or indirectly, any person who, at that time or within the last six (6) months, was either employed or engaged as an independent contractor by the other party. 9.2. The parties are and intend to be independent contractors with respect to the services contemplated hereunder. IIS agrees that neither it nor its employees or contractors shall be considered as having an employee status with County. All persons employed by IIS to perform Services shall be subject to the exclusive direction and control of IIS. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created. IIS shall operate as an independent contractor for all purposes. Without limiting in any way and subject to the terms of Section 7 of this Agreement, the Parties agree to each be solely responsible for their own acts and omissions in the performance of each of their individual duties hereunder, and shall be financially and legally responsible for all liabilities, costs, damages, expenses and attorney fees resulting from, or attributable to any and all of their individual acts or omissions to the extent allowable by law. 9.3. Neither party shall be liable for any failure or delay in the performance of its obligations due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, accident, fire, explosion, flood, hurricane, severe weather or other act of God. Each party shall promptly notify the other party in the case of an event arising under this Section. 9.4. This Agreement, including all Schedules, constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral agreements with respect to its subject matter. Except as provided expressly herein, this Agreement shall not be modified, amended, or in any way altered except in a written -5- amendment executed by both of the parties. No waiver of any provision of this Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. 9.5. Headings used in this Agreement are for convenience of reference only and shall not be deemed a part of this Agreement. 9.6. If IIS should undergo a merger, acquisition, change in control, or change in name for any reason, IIS will promptly notify the County in writing of the change. Upon request of the County, unless prevented from doing so by a confidentiality or a nondisclosure agreement, IIS will provide the County with legal documentation supporting these changes such as an Assumption Agreement, Bill of Sale, Articles of Incorporation, Articles of Amendment, sales contract, merger documents, etc. Further, if notice provisions require changing, IIS will submit the name and address of the assuming provider's contact information for notices. If IIS assigns this Agreement in connection with the sale of all or substantially all of its business, the acquirer must agree in writing to be bound by the terms of this Agreement. This Agreement may not be assumed or otherwise transferred to another party by IIS (or any future provider) without the express written consent of County, which said consent will be evidenced by an acceptance memo, letter or e-mail from the County Manager, or designee, to the original provider under the Agreement and the assuming provider. Any attempted assignment not authorized herein shall be null and void. 9.7. All notices required or permitted hereunder shall be in writing, delivered personally; by certified or registered mail, or by overnight delivery by an established national delivery service at the respective addresses first set forth above. Notices to IIS shall be sent to the attention of the Vice President, e-Gov Solutions or to such other person designated by IIS in a written notice to County. Notices to County shall be sent to the attention of the Tax Administrator or to such other person designated by County in a written notice to IIS. All notices shall be deemed effective upon personal delivery or when received if sent by certified or registered mail or by overnight delivery. 9.8. The software licenses set forth in the License Agreement are perpetual, and it is the desire of the parties that this be an ongoing contract which shall continue from year to year without the necessity of re-execution, subject to continued appropriation by the Orange County Board of Commissioners, or other funding source, pursuant to N.C.G.S. 153A-13. The support services (as further described in the IIS support agreements) are 5 year agreements, during which period they will continue from year to year without the necessity of re-execution, subject to continued appropriation by the Orange County Board of Commissioners or other funding source, pursuant to N.C.G.S. 153A-13. Intelligent I formation Sys s, Inc. By: Name. e ~ /' ' 1 < < ~c Title: V ~e ~f ~c mid a h y' Date: l l- ~ ~ -~ C/ Ora By: Nan Title: C~~ Date: ~ ~ Q t' -6- SCHEDULE NO. 1 SERVICES AND FEES This Schedule is made and entered into by and between Intelligent Information Systems, Inc. ("IIS") and Orange County ("County"), and is subject to the terms of the Implementation Services Agreement between the parties dated (the "Services Agreement"). 1. SERVICES AND FEES Attachment A to this Schedule, incorporated herein by reference, contains an initial Project Plan outlining the overall tasks, IIS responsibilities, County responsibilities, deliverables, fees, payment terms, and acceptance criteria associated with the implementation of NCPTS. County agrees to pay IIS the fees set forth in Attachment A, which consist o£ PHASE A: Billing & Collections A.1.A. Shared Development Fee $70,000 A.1.B. Project Planning $31,250 A.1.C. Business Process Mapping $16,000 A.1.D. Data Mapping & Cleansing $42,500 A.1.E. Enhancements Requirements $33,863 A.1.F. Interface Requirements $12,800 A.1.G. Travel $2,000 A.2.A. Project Management $37,250 A.2.B. Data Conversion & Reports Reconciliation $127,500 A.2.C. Enhancements Development $79,013 A.2.D. System Installation & Integration $63,200 A.2.E. Training $45,000 A.2.F. Testing $71,000 A.2.G. Travel 3 000 PHASE A TOTAL 6 4 3 5 IIS out-of-pocket expenses incurred in the performance of Services, including but not limited to travel, lodging, meals, postage, freight, printing and long distance phone expenses, are included in the Services fees. Notwithstanding anything to the contrary in Attachment A, County will withhold $35,000 of the $70,000 Shared Development Fee of Phase A set forth above until the County's acceptance of Phase A deliverables pursuant to Section 4 below (excluding the deliverables provided by Farragut Systems (defined below)). Also, notwithstanding anything to the contrary in this Schedule or in Attachment A, County may withhold fifteen percent (15 %) of each milestone payment. Such withheld amounts will be due and payable along with payment by County of the last milestone payment under this Schedule. Under this Schedule, IIS is assisting the County in the implementation of NCPTS and other third-party -7- software listed below (collectively, the "Software"). All of the Software is licensed pursuant to the terms of agreements between the County and the third parties listed below (the "Software Agreements"). License, software warranties, indemnification, and other terms and conditions relating to the Software are covered by the terms of the Software Agreements and are not covered by the terms of this Agreement. However, as part of the implementation services outlined in this Schedule, IIS will assist the County by helping determine the source of any issues with the Software, resolving issues associated with NCPTS. Vendor/Party to Software License Agreement Name of Software NCACC NCPTS The County's request for proposal number 5086 for the implementation of a Property Information Management System ("RFP"), and IIS' response to the RFP dated July 19, 2007 and Revised IIS Functional Response to Orange RFP #5086 (collectively, "Response"), are hereby incorporated by reference. In the event of any conflict between the terms of the Services Agreement and the Project Plan, Response, and RFP, the following order of precedence shall apply: 1. Attachment A 2. The Services Agreement 3. Response 4. RFP 2. DELAYS The parties agree that time is of the essence and to work together in good faith to meet established timeframes and avoid delays in the completion of Services. In the event that either party believes that a delay may be likely, whether due to factors within the control of such party or outside the control of such party, then it shall promptly notify the other party in writing and the parties will meet as soon as practicable to discuss ways to mitigate or avoid any such delays. County shall provide IIS with access to County's personnel, facilities, databases, information, approvals and security clearance as set forth in this Schedule, an agreed Project Plan or other agreed project document. In addition, so long as IIS provides reasonable advance notice, County will provide reasonably required office space and limited access to a telephone, computer, copier, printer and parking spaces. County also understands that certain individuals, because of their position or particular expertise, may be required to participate in the Services on an `as needed' basis to attend meetings, provide answers, research issues, define policies, etc. County acknowledges that a delay in the completion of the Services is likely to lead to additional costs for IIS. In the event that County solely causes a delay of more than two (2) months in the completion of a major Phase of Services as defined in the Project Plan, then County agrees to pay IIS a fee in an amount equal to one percent (1%) of the total fees due for such Phase for each week that the Project is delayed past 2 months, up to a maximum of 10% (10 weeks). IIS acknowledges that a delay in the completion of the Services is likely to lead to additional costs for County. In the event that IIS solely causes a delay of more than two (2) months in the completion of a major Phase of Services as defined in the Project Plan, then IIS agrees to provide County with a credit in an amount equal to one percent (1 %) of the total fees due for such Phase for each week that the Project is delayed past 2 months, up to a maximum of 10% (10 weeks). -8- The parties agree that the fees and credits in this Section are not penalties but instead are good-faith estimates of the damages associated with delays to each party. In addition, this Section is subject to the terms of Section 9.3 of the Services Agreement (force majeure). 3. PROJECT MANAGERS Within five (5) business days after the Effective Date, each party will provide notice to the other party to the attention of the designated "Project Manager" for such party. Each Project Manager will be the primary point of contact for this Agreement, and will respond promptly when contacted by the other Project Manager regarding this Agreement. Each party shall notify the other in writing of any replacement of its Project Manager. The County's Project Manager shall have responsibility and authority for: ^ Ensuring all County responsibilities are completed in a timely manner ^ Accepting or rejecting deliverables ^ Approving invoices The Project Managers will meet on at least a weekly basis to review status of the Services and any delays or other issues under the Project Plan. 4. ACCEPTANCE County shall review each final deliverable ("Deliverable") to determine if it is in compliance in all material respects with agreed acceptance criteria as defined in Attachment A. County shall provide IIS in writing with its acceptance or rejection of each Deliverable within ten (10) business days, unless a different time period is agreed by the parties. The Deliverable will be deemed accepted by County if County uses the Deliverable in a live, production setting or if County does not notify IIS of any problems within the five-day period noted above. County shall provide IIS with detailed information and specific reasons in the event County rejects a Deliverable. In such event, IIS shall promptly verify and will use commercially reasonable efforts to either modify the Deliverable or provide a reasonable workaround to address any verified issues within ten (10) business days. -9- This instrument has been pre-audited in the manner required by the Local Governmey~t Budget and Fiscal Control Act Gary ial Services Director