HomeMy WebLinkAboutC10. PSA Avolve
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Bob Risk, Chief Building Official
Wendy Thomas, Director of Community Development
SUBJECT: Professional Services Agreement and Proposal for Avolve Software Inc to provide user training for the Electronic Plan Review Software recently implemented by the Department of Community Development.
MEETING DATE: June 1, 2015
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize the Director of Community Development to sign a Professional Services Agreement and Proposal with Avolve Software Inc. to provide user training for Community Development’s Electronic Plan Review software.
BACKGROUND: The Bozeman Department of Community Development recently
implemented an electronic plan review (EPR) program that will enable the electronic submittal
and paperless review of site and building plans as part of the City’s permitting process. Beginning January 2016, the Building Division will only accept electronic plan submittals.
In preparation for the switch to electronic plan submittals, the training provided by Avolve
Software will include staff refresher training as well as new user training for our construction
and design community.
UNRESOLVED ISSUES: None
ALTERNATIVES: As suggested by the Commission.
FISCAL EFFECTS: Per the attached proposal, the Building Division would pay $15,800 to
Avolve Software Inc. to provide Electronic Plan Review user training. This amount would be
paid entirely from the Building Division Enterprise Fund.
Attachments: 1) Professional Services Agreement
2) Avolve Software Inc. Training Proposal
Report compiled on: May 12, 2015
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of _________, 2015, by and
between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse
Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as “City,” and Avolve Software, Inc., with a mailing address of 4835 E.
Cactus Rd., Suite 420, Scottsdale AZ 85254, hereinafter referred to as “Contractor.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Exhibit “A” and by this reference
made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution.
3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City, and
will become an additional charge over and above the amount listed in the Scope of Services. The
City must agree in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
and regulations that in any manner may affect cost, progress or performance of the Scope of
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Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform said services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this
Agreement shall not infringe upon or violate the rights of any third party, whether rights of
copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever,
or violate any federal, state and municipal laws. The City will not determine or exercise control as
to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be considered
an employee of the City for any purpose. Contractor is not subject to the terms and provisions of
the City’s personnel policies handbook and may not be considered a City employee for workers’
compensation or any other purpose. Contractor is not authorized to represent the City or otherwise
bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation
Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter
71, MCA. Contractor shall maintain workers’ compensation coverage for all members and
employees of Contractor’s business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
7. Indemnity/Waiver of Claims/Insurance: Contractor agrees to release, defend,
indemnify, and hold harmless the City, its agents, representatives, employees, and officers
(collectively referred to for purposes of this Section as the City) from and against any and all
claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of and
expert witness and consultants), losses, expenses, liabilities (including liability where activity is
inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith
and without limit and without regard to the cause or causes thereof or the negligence of any party or
parties that may be asserted against, recovered from or suffered by the City occasioned by, growing
or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the
Contractor’s agents.
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Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this Section
must not be construed to negate, abridge, or reduce any common-law or statutory rights of the
indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor’s
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or
was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers, agents
or employees, including the right of contribution for loss or damage to person or property arising
from, growing out of, or in any way connected with or incident to the performance of this
Agreement except “responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor’s expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any
exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City and Contractor
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shall furnish to the City an accompanying certificate of insurance and accompanying endorsements
in amounts not less than as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on the Commercial General Liability policy. The insurance and required
endorsements must be in a form suitable to City and shall include no less than a sixty (60) day
notice of cancellation or non-renewal. The City must approve all insurance coverage and
endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2)
business days of Contractor’s receipt of notice that any required insurance coverage will be
terminated or Contractor’s decision to terminate any required insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8. Termination for Contractor’s Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any terms
or conditions of this Agreement, the City may, by written notice, terminate this Agreement
and the Contractor’s right to proceed with all or any part of the work (“Termination Notice
Due to Contractor’s Fault”). The City may then take over the work and complete it, either
with its own resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered. The City shall be
entitled to a refund of any amounts paid prior to termination pursuant to this Section 8, and
shall not be responsible for any travel expenses incurred by Contractor.
c. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
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d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City may terminate
this Agreement by written notice to Contractor (“Notice of Termination for City’s
Convenience”). The termination shall be effective in the manner specified in the Notice of
Termination for City’s Convenience and shall be without prejudice to any claims that the
City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work, incurring
additional expenses or costs under this Agreement and shall immediately cancel all existing
orders or contracts upon terms satisfactory to the City. Contractor shall do only such work
as may be necessary to preserve, protect, and maintain work already completed or
immediately in progress.
c. In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of
the Notice of Termination for City’s Convenience, subject to the cancellation penalty
described in Contractor’s Cancellation Policy in the attached Scope of Services.
d. The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special, punitive, lost business opportunity,
lost productivity, field office overhead, general conditions costs, or lost profits damages of
any nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
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opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within ten (10) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Bob Risk, Chief Building Officer or such other individual as City shall
designate in writing. Whenever approval or authorization from or communication or
submission to City is required by this Agreement, such communication or submission shall
be directed to James Goehrung as the City’s Representative and approvals or authorizations
shall be issued only by such Representative; provided, however, that in exigent
circumstances when City’s Representative is not available, Contractor may direct its
communication or submission to other designated City personnel or agents as listed above
and may receive approvals or authorization from such persons.
b. Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be _____________________ or such other individual as
Contractor shall designate in writing. Whenever direction to or communication with
Contractor is required by this Agreement, such direction or communication shall be directed
to Contractor’s Representative; provided, however, that in exigent circumstances when
Contractor’s Representative is not available, City may direct its direction or communication
to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13. Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and disposal
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of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County,
and State building and electrical codes, the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will
have a policy to provide equal employment opportunity in accordance with all applicable state and
federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse
employment to a person, bar a person from employment, or discriminate against a person in
compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation,
gender identity, physical or mental disability, except when the reasonable demands of the position
require an age, physical or mental disability, marital status or sex distinction. The Contractor shall
be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United
States Code, and all regulations promulgated thereunder. The Contractor shall require these
nondiscrimination terms of its sub-Contractors providing services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or
illegal drugs, by any employee or agent engaged in services to the City under this Agreement while
on City property or in the performance of any activities under this Agreement. Contractor
acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S.
Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing his employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
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17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
18. Non-Waiver: A waiver by either party any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party’s right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
19. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party
of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement
or to give any notice required herein, then the prevailing Party or the Party giving notice shall be
entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel
to include City Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22. Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
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23. Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of
this Agreement by reference.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA AVOLVE SOFTWARE, INC.
CONTRACTOR
By________________________________ By__________________________________
Chris Kukulski, City Manager
Print Name:
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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EXHIBIT A
SCOPE OF SERVICES
163
201503-490
City of Bozeman, MT
Avolve University:
Refresher Training
Pilot Training
Community Outreach Development Workshop
Tuesday, April 21, 2015
Prepared By Your Avolve Software Representative
Lora Shaffer
Customer Relationship Manager
4835 East Cactus Road
Suite 420
Scottsdale, AZ 85254
www.avolvesoftware.com
Telephone: (480) 662-9729
Email: lshaffer@avolvesoftware.com
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PURCHASER INFORMATION
Bob Risk Chief Building Official City of Bozeman, MT
20 E. Olive brisk@bozeman.net (406) 581-7630
Bozeman, MT
59771 Date of Quotation: 4/21/2015
TRAINING
Product Name SKU Qty Unit Price Unit Type Total Price
Applicant Pilot Kickoff Training
This Avolve University course includes a
flexible mixture of demonstration/lecture
with hands-on lab time to familiarize the
Citizen End User with the basic features of
ProjectDox and their involvement in the e-
Plan Review process (See additional
course detail attached)
Training to be conducted onsite.
Travel and Expenses not included in
quoted price.
AU-PILOT 2 $7,000.00 Each $14,000.00
Avolve University Hourly Rate
Refresher of ProjectDox along with one/one
assistance from trainer for second half of
day. Course agenda to be developed with
Bob Risk.
Training to be conducted onsite.
Travel and Expenses not included in
quoted price.
AU-225 8 $225.00 Hourly $1,800.00
Half Day Discovery
Objective: Workshop to develop plan of
action for Community Outreach
Workshop to be conducted onsite.
Travel and Expenses not included in quoted price.
AU-225
4
$225.00
Hourly
$0
Grand Total: $15,800.00
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Specific Terms and Conditions:
To be invoiced upon customer signature. Payment is due 30 days from date of invoice. 1.5% service charge per month
will be applied after 30 days of invoice date (18% per annum). Travel and Expenses are not included in this total.
Notes:
EFT Remittance:
Avolve Software / Compass Bank
Routing #: 122105744
Account #: 2519753300
NAME:________________________________________________
TITLE:________________________________________________
SIGNATURE: __________________________________________
DATE:________________________________________________
By signing this Order Form customer acknowledge and agrees to, if purchasing (a) licenses and/or support and
maintenance, Avolve’s Software License and Support Agreement General Terms and Conditions and Avolve’s
Maintenance and Support Level Agreement; (b) professional services, Avolve’s Professional Services Agreement; and
(c) training services, the Avolve University Training Terms and Conditions; and (d) hosting services, Avolve’s Hosting
Service Level Agreement. Customer acknowledges that it has been provided reasonable access to the applicable
contained within this proposal or available from your Avolve Sales representative and knowingly consents to the same.
Resellers acknowledge that they will have end users formally acknowledge and be bound by all applicable Avolve
Terms and Conditions as described above.
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AU-PILOT APPLICANT PILOT KICKOFF TRAINING
Max Per Class: 15
Overview
This Avolve University course includes a flexible mixture of demonstration/lecture with hands-on lab time to familiarize the Citizen End User with the basic features of ProjectDox and their
involvement in the e-Plan Review process. This 3-4 hour instructor lead course will focus
training on the key aspects of the ProjectDox system such as how to access a project, upload
documents, view a file and view a markup, as well as the users role in the workflow process, the benefits of the process, and how to accept tasks, complete tasks, and how they can expect to receive notification during the process to assist in easing the transition to the new electronic
process while giving hands-on experience to further their understanding. Attendees will receive
access to focused training “How To” document providing details of how complete their role
within the process as well as defining any submission standards the jurisdiction may require.
Audience
Course is designed to provide focused hands-on training for the citizen end users (Applicants) of
the jurisdiction who will participate in the e-plan process.
Course Length
½ day
Prerequisite Knowledge/Skill
NONE
Course Objective
Upon successful completion of this course, participants should be able to:
• Understand basic system requirements
• Understand how to access projects, folders and files
• How to Upload
• Understand their involvement in the e-Plan approval process
• How to accept and complete a task
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