ORDER NO. 31568 MAINTENANCE CONTRACT WITH DIANA TWISS, INDEPENDENT CONSULTANT, FOR SOFTWARE APPLICATION MAINTENANCE AGREEMENT Came to be heard this the 14th day of December, 2009, with a motion made by Commissioner Williams, seconded by Commissioner Letz, the Court unanimously approved by a vote of 4-0-0 to: Approve the Maintenance Contract with Diana Twiss, Independent Consultant, for Software Application Maintenance Agreement for the Kerr County Attorney's Office, and authorize County Judge to sign same. COMMISSIONERS COURT AGENDA REQUEST C 0 P Y ~, ~~ 31S~6g PLEASE FURNISH ONE ORIGINAL AND ONE COPY OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: Ilse Bailey OFFICE: County Attorney MEETING DATE: Dec. 14, 2009 TIME PREFERRED: Any SUBJECT: Consider, discuss and take appropriate action to approve maintenance contract with Diana Twiss, Independent Consultant, for Software Application Maintenance Agreement for Kerr County Attorney's Office. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Ilse Bailey ESTIMATED LENGTH OF PRESENTATION: 5 minutes IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday. THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. Application Maintenance Agreement This Application Maintenance Agreement (AMA) is made and entered this 15th day of November, 2009, by and between Kerr County (hereinafter referred to as "Customer") and Diana Twiss, Independent Consultant (here in after known as "Consultant"), for software designed and implemented for use by the Kerr County Attorney's Office ~. e'jif'::(OI~S The following words and expressions used in this agreement shall have the following meaning: 1.1 "Software" shall mean the Access Application as delivered and implemented by Consultant for the customer as listed in schedule I to this agreement: 1.2 "One Support Year" means one calendar year beginning from the date of signing of this agreement or the date of renewal of the same. 1.3 "Support Services" means the Maintenance and Technical Support Services provided under this Agreement Schedule 11. 1.4 "User" means the person, persons, or organization, that operates or interacts directly with the software. 1.5 "Working Hour/s" shall mean Consultant's hour/s within the working hours as specified in schedule It. 1.6 "One person-day" shall equal eight (8) person-hours: 1.7 "One person-month" shall equal twenty (20) person-days This agreement shall be effective when signed by both parties and shall remain valid, for a period of up to 12 months subject to performance in accordance with the obligations of both parties to it. The list of Maintenance and Technical Support Services is described in Schedule II. The nature of Support Services rendered will also include the following activities: a. Assist in the identification of cause of errors/bugs, i.e., hardware, operating system, or software. b. Analysis of software error messages and taking remedial actions (and preventive measures). c. Review table space usage, indexes, backup procedures and advise on necessary actions to be taken if any, every six months. d. Provide cost estimates and time frame with regard to enhancements and modifications as requested by Customer. e. For the purposes of consistency, Consultant will establish the severity of a reported problem encountered by User in using the software according to the following definitions i. Catastrophic problem -software/application is down, User is unable to function or complete work. This includes anon-isolated, constantly reproducible problem resulting in system crash. ii. Major Problem-this covers problems which must be corrected but do not prevent progress from being made, and/or problems which do not require immediate attention. This include: a. Isolated, consistently reproducible problem resulting in a system crash; b. Failure of a significant function of the software. iii. Minor problem- A problem which does not have a major impact on operation or development, or for which an adequate work around exists. iv. Non-Reproducible error-A reported error which Consultant cannot reproduce easily. Consultant reserves the right to re-classify a reported problem as more information becomes available. Consultant will call back user within two (2) hours of initial receipt of a reported problem by User. Consultant will inform User of the severity level assigned to the problem. Based on the severity level of the problem, consultant will call User back with either: 1. A solution 2. A work around 3. The determination that further research is required. The call back time after the assessment of the severity level of the problems is as follows: Severity Level Call back time after the intial call back Catastrophic Within 2 working hours Major Within 4 working hours Minor Within 8 working hours Non-reproducible Within 16 working hours 3.2 Consultant will continue to keep user informed of the problem report resolution progress. 3.3 In the event the Consultant determines that a problem notified by User has been caused by abuse or misuse of the software and modules, or by modifications, additions or deletions to the said software by some other party (not Consultant) or by bringing the change to the programming environment then: Customer agrees, if requested by Consultant, to reimburse Consultant the cost, calculated on a time and materials basis at Consultant's then- current rates for work performed by Consultant in investigating the problem, and Consultant, on request of Customer and /or User, shall advise Customer and/or User whether Consultant can correct or assist in resolving such problem, and the terms under which Consultant shall undertake same, and on written acceptance by the Customer and/or User, Consultant shall correct or assist in resolving the problem in accordance with such terms. 4.1 Customer and User shall give full access to the location, the software and equipment to enable company to provide the Support Services and Customer and User shall make available information, facilities and services reasonably required by Consultant for the performance of its obligations under this agreement. 4.2 User shall make available to Consultant the necessary desks and conventional office facilities. 4.3 Customer and/or User shall be deemed to have made provisions for all necessary backups (hardware, software, and data) and alternative communications facilities for use during a recovery operations in the event of an emergency. 5.1 The maintenance fee currently prevailing is as specified in Schedule III to this agreement. 5.2 Alterations to the maintenance price, subject to approval by customer, shall be incorporated as a term and conditions of this agreement by appending a new version of schedule 111 to this agreement and shall come into effect on the effective date specified therein. 5.3 Customer agrees to make payment due to Consultant under the provision of this agreement as specified in Schedule III. 5.4 The Agreement shall be for a period of 12 months and shall be renewed subject to both parties hereto executing and agreement of same. 6.1. The parties acknowledge that by reason of their relationship to each other hereunder, each will have access to certain information and materials concerning the other's technology and data that is confidential and of substantial value to that party, which value would be impaired if such information were disclosed to third parties ("Confidential Information"). 6.2. Each party agrees that it will not use in any way, except as provided herein, nor disclose to any third party, any such confidential information revealed to it by the other party. Each party will take every reasonable precaution to protect the confidentiality of such Confidential Information. Each party shall not divulge or use in any manner any confidential information unless written consent from the party concerned has been obtained. '~ ~~~ti~~~~~~~ Customer and/or User shall take the necessary preventive maintenance measures with their respective agencies and vendors including, but not limited to, drawing up maintenance and/or contingency agreements with these agencies and vendors. In the event that the software and computer system is not functional for a prolonged period of time during a contingency, Customer, User and Consultant shall agree on a joint decision to put into implementation, the backup operations plans so as to maintain operational continuity. ~e ~~~li~~~~~ I.~~r This agreement shall be governed by, and constructed in accordance with the laws of Texas. There are no agreements, understanding or representation, express or implied, not specified herein. ~a ~'~t`I1tj~~~l!dtl 9.1. The parties shall have the right to terminate this agreement upon 30 days written notice upon: i. Violation or breach by the parties or their employees of any fundamental provision of this Agreement, including but not limited to, confidentiality and payment. ii. The termination of the parties' business or determination by User that the Application is no longer needed. 9.2. In the above circumstances, this Agreement shall be automatically terminated with no further obligations on the part of the parties. 9.3. In the event of such termination the parties shall mutually agree to settle their respective accounts. 9.4. Notwithstanding the foregoing all provisions hereof relating to confidentiality shall survive the termination of this Agreement. ~C~s ~~~ This agreement shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors and assigns, but it shall not be assigned in whole or in part by either party without the prior written consent of the other except, that either party's interests shall be assignable through merger, consolidation or reorganization or sale or transfer of substantially all its assets. 11. i~c~~~~~~~~ No term or provision of this agreement shall be deemed waived and no breach thereof shall be deemed excused, unless such waiver or consent is given in writing and signed by the party alleged to have waived or consented. 12. 1!i€~i~~ Any notice, request, demand, approval, consent of other communication provided or permitted hereunder shall be in writing and given by personal delivery or sent by registered mail or by ordinary mail, postage prepaid or email addressed to the party for which it is intended. No amendment to this Agreement shall be effective unless it is in writing and duly signed by authorized representative of both parties. If any provision of this agreement shall be held to be invalid, illegal or unenforceable, the validity, liability and enforceability of the remaining provision shall in no way be affected or impaired thereby. Theis agreement is for a maximum period of one year as from the date of signing of same and will be renewed for further periods of one year each subject to both parties hereto executing an agreement for same. lb. Eti~ ~~~~a~n~ Each party acknowledges that is has read this agreement, understands it and agrees to be bound by its terms. ~u~ltc~m~~t ~~~~~~~ . List of software already installed and/or to be installed: Access Application for prosecutor maintenance and managing case load and fill able forms and mail merges. ~~~ List of Maintenance & Technical Support Services: 1. Services and Excepted Services: The Maintenance Services that will be supplied to the Customer shall comprise the following services: 'Preventive Maintenance', and 'Curative Maintenance' (as respectively defined below) in respect of the Application Software. a. Preventive Maintenance shall comprise the routine inspection and testing by the Consultant of the Application Software and shall include daily backups to the application in the event recovery of the data must be conducted. b. Curative Maintenance shall comprise all or any of the following categories of services listed below which have been opted for by the Customer. i. Upon receipt of a request from the Customer, the inspection, testing and diagnosis of any fault reported in the Application Software. ii. Upon receipt of a request from the Customer, the carrying out of such repairs by issuing such fixed in relation to the Application Software of otherwise as judged necessary to remedy the fault reported. This also covers the provisions of upgrades and updates to Application Software due to bug fixes. Services to be provided inconsideration of the Maintenance Charges shall not included Excepted Services. Excepted Services shall comprise of but shall not be limited to the diagnosis and rectification of a fault in the Application Software resulting from: a. The improper use, operation or neglect of the Application Software; b. Any repair, adjustment, alteration or modification of the Application Software by any person other than the Consultant without the Consultant's prior written consent; 2. Remote Support Services a. Help Desk Services within Normal Office hours as specified in the call window below; b. Support by Telephone and email 3. On Site Support a. Consultant shall provide onsite support in the event that the Support Services provided above is not able to resolve the issue at hand; b. On site shall be rendered if User has performed all recommended actions by Consultant's Support Services Personnel and has reported all the necessary diagnostic information including but not limited to error logs' print-outs, messages and relevant problem information c. All On-Site support shall be rendered within the Call Window as specified below. 4. Upgrades, Updates, Modifications and Enhancements (Full software Maintenance) a. Preventive and Curative maintenance services as specified in section 1 of Schedule II of the maintenance contract, modifications, further development and enhancements to application software shall be provided at no additional costs provided that such work do not exceed a total of $1,500 per year. b. For modifications, enhancements and/or development above the total $1,500 per year, Consultant shall forward the scope, duration and cost of such development to Customer for approval. Consultant shall proceed with the development only after the approval has been obtained. c. For bugs arising after the provision of the total of the above mentioned yearly effort, the Consultant will attend to the work upon request of the customer and shall accordingly send an appropriate bill to the Customer. d. Whenever major modifications are brought to the software covered in this Agreement, after discussion with Customer, Consultant shall provide: i. Implementation and Test Plan; ii. Migration Plan (with approval from user); iii. Basic Training iv. Documentation update on hard copy and/or magnetic media. 5. Upgrades, Updates, Modifications and enhancements (Normal Software Maintenance) a. Preventive and curative maintenance services as specified in section 1 of Schedule II of the maintenance Contract shall be provided at no additional costs. b. The Consultant will supply and aggregate number ofwork/person effort equivalent to $600 per year. Such work would be undertaken during the current contractual period for the purposes of carrying Preventive and curative maintenance services. c. For modifications, enhancements and/or development the company shall pay $100.00 per hour. Consultant shall forward the scope, duration and cost for such development to Customer for approval. Consultant shall proceed with the development only after this approval has been obtained. d. Whenever major modifications are brought to the software covered in this agreement after discussion with User, Consultant shall provide: i. Implementation and Test Plan; ii. Migration Plan (with approval from User): iii. Basic Training; iv. Documentation Update on hard copy and/or magnetic media. 6. Call Hours a. Monday to Saturday 7:00 a. m. to 5:00 p.m. Schedule III Schedule of Rates and Charges ^ 1. Annual Maintenance & Technical Support Services Covering Sections 1, 2, &3 of Schedule II $600. Annually. ^ 2. Full Service Maintenance Agreement Covering section 1, 2, 3 & 4 of Schedule II $1,500 annually, with development not to exceed 15 development hours. D 3. Standard Maintenance Agreement Covering sections 1, 2, 3 & 5 of Schedule II $600 annually plus $100 hourly rate for section 5. Application Maintenance Agreement This Application Maintenance Agreement (AMA) is made and entered this 15th day of November, 2009, by and between Kerr County (hereinafter referred to as "Customer") and Diana Twiss, Independent Consultant (here in after known as "Consultant"), for software designed and implemented for use by the Kerr County Attorney's Office 1. Definitions The following words and expressions used in this agreement shall have the following meaning: 1.1 "Software" shall mean the Access Application as delivered and implemented by Consultant for the customer as listed in schedule I to this agreement: 1.2 "One Support Year" means one calendar year beginning from the date of signing of this agreement or the date of renewal of the same. 1.3 "Support Services" means the Maintenance and Technical Support Services provided under this Agreement Schedule II. 1.4 "User" means the person, persons, or organization, that operates or interacts directly with the software. 1.5 "Working Hour/s" shall mean Consultant's hour/s within the working hours as specified in schedule I1. 1.6 "One person-day" shall equal eight (8) person-hours: 1.7 "One person-month" shall equal twenty (20) person-days 2. Terms of Agreement This agreement shall be effective when signed by both parties and shall remain valid, for a period of up to 12 months subject to performance in accordance with the obligations of both parties to it. 3. Support Services The list of Maintenance and Technical Support Services is described in Schedule II. The nature of Support Services rendered will also include the following activities: a. Assist in the identification of cause of errors/bugs, i.e., hardware, operating system, or software. b. Analysis of software error messages and taking remedial actions (and preventive measures). c. Review table space usage, indexes, backup procedures and advise on necessary actions to be taken if any, every six months. d. Provide cost estimates and time frame with regard to enhancements and modifications as requested by Customer. e. For the purposes of consistency, Consultant will establish the severity of a reported problem encountered by User in using the software according to the following definitions i. Catastrophic problem -software/application is down, User is unable to function or complete work. This includes anon-isolated, constantly reproducible problem resulting in system crash. ii. Major Problem-this covers problems which must be corrected but do not prevent progress from being made, and/or problems which do not require immediate attention. This include: a. Isolated, consistently reproducible problem resulting in a system crash; b. Failure of a significant function of the software. iii. Minor problem- A problem which does not have a major impact on operation or development, or for which an adequate work around exists. iv. Non-Reproducible error-A reported error which Consultant cannot reproduce easily. Consultant reserves the right to re-classify a reported problem as more information becomes available. Consultant will call back user within two (2) hours of initial receipt of a reported problem by User. Consultant will inform User of the severity level assigned to the problem. Based on the severity level of the problem, consultant will call User back with either: 1. A solution 2. A work around 3. The determination that further research is required. The call back time after the assessment of the severity level of the problems is as follows: Severity Level Call back time after the intial call back Catastrophic Within 2 working hours Major Within 4 working hours Minor Within 8 working hours Non-reproducible Within 16 working hours 3.2 Consultant will continue to keep user informed of the problem report resolution progress. 3.3 In the event the Consultant determines that a problem notified by User has been caused by abuse or misuse of the software and modules, or by modifications, additions or deletions to the said software by some other party (not Consultant) or by bringing the change to the programming environment then: Customer agrees , if requested by Consultant, to reimburse Consultant the cost, calculated on a time and materials basis at Consultant's then- current rates for work performed by Consultant in investigating the problem, and Consultant, on request of Customer and /or User, shall advise Customer and/or User whether Consultant can correct or assist in resolving such problem, and the terms under which Consultant shall undertake same, and on written acceptance by the Customer and/or User, Consultant shall correct or assist in resolving the problem in accordance with such terms. 4. Customer and User Obligations 4.1 Customer and User shall give full access to the location, the software and equipment to enable company to provide the Support Services and Customer and User shall make available information, facilities and services reasonably required by Consultant for the performance of its obligations under this agreement. 4.2 User shall make available to Consultant the necessary desks and conventional office facilities. 4.3 Customer and/or User shall be deemed to have made provisions for all necessary backups (hardware, software, and data) and alternative communications facilities for use during a recovery operations in the event of an emergency. 5. Maintenance Fee and Payment Terms 5.1 The maintenance fee currently prevailing is as specified in Schedule 111 to this agreement. 5.2 Alterations to the maintenance price, subject to approval by customer, shall be incorporated as a term and conditions of this agreement by appending a new version of schedule III to this agreement and shall come into effect on the effective date specified therein. 5.3 Customer agrees to make payment due to Consultant under the provision of this agreement as specified in Schedule III. 5.4 The Agreement shall be for a period of 12 months and shall be renewed subject to both parties hereto executing and agreement of same. 6. Confidential Information 6.1. The parties acknowledge that by reason of their relationship to each other hereunder, each will have access to certain information and materials concerning the other's technology and data that is confidential and of substantial value to that party, which value would be impaired if such information were disclosed to third parties ("Confidential Information"). 6.2. Each party agrees that it will not use in any way, except as provided herein, nor disclose to any third party, any such confidential information revealed to it by the other party. Each party will take every reasonable precaution to protect the confidentiality of such Confidential Information. Each party shall not divulge or use in any manner any confidential information unless written consent from the party concerned has been obtained. 7 Contingencies Customer and/or User shall take the necessary preventive maintenance measures with their respective agencies and vendors including, but not limited to, drawing up maintenance and/or contingency agreements with these agencies and vendors. In the event that the software and computer system is not functional for a prolonged period of time during a contingency, Customer, User and Consultant shall agree on a joint decision to put into implementation, the backup operations plans so as to maintain operational continuity. 8. Applicable Law This agreement shall be governed by, and constructed in accordance with the {aws of Texas. There are no agreements, understanding or representation, express or implied, not specified herein. 9. Termination 9.1. The parties shall haue the right to terminate this agreement upon 30 days written notice upon: i. Violation or breach by the parties or their employees of any fundamental provision of this Agreement, including but not limited to, confidentiality and payment. ii. The termination of the parties' business or determination by User that the Application is no longer needed. 9.2. In the above circumstances, this Agreement shall be automatically terminated with no further obligations on the part of the parties. 9.3. In the event of such termination the parties shall mutually agree to settle their respective accounts. 9.4. Notwithstanding the foregoing all provisions hereof relating to confidentiality shall survive the termination of this Agreement. 10. Assignment This agreement shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors and assigns, but it shall not be assigned in whole or in part by either party without the prior written consent of the other except, that either party's interests shall be assignable through merger, consolidation or reorganization or sale or transfer of substantially all its assets. 11. Non-Waiver No term or provision of this agreement shall be deemed waived and no breach thereof shall be deemed excused, unless such waiver or consent is given in writing and signed by the party alleged to have waived or consented. 12. Notice Any notice, request, demand, approval, consent of other communication provided or permitted hereunder shall be in writing and given by personal delivery or sent by registered mail or by ordinary mail, postage prepaid or email addressed to the party for which it is intended. 13. Amendments to Agreement No amendment to this Agreement shall be effective unless it is in writing and duly signed by authorized representative of both parties. 14. Enforceability If any provision of this agreement shall be held to be invalid, illegal or unenforceable, the validity, liability and enforceability of the remaining provision shall in no way be affected or impaired thereby. 15. Renewal of Agreement This agreement is for a maximum period of one year as from the date of signing of same and will be renewed for further periods of one year each subject to both parties hereto executing an agreement for same. 16. Entire Agreement Each party acknowledges that is has read this agreement, understands it and agrees to be bound by its terms. Customer ~ t• ~~ Consultant Date: /~ .~~ Date: /z~~~~2~ Schedule 1 List of software already installed and/or to be installed: Access Application for prosecutor maintenance and managing case load and fill able forms and mail merges. Schedule II List of Maintenance & Technical Support Services: 1. Services and Excepted Services: The Maintenance Services that will be supplied to the Customer shall comprise the following services: `Preventive Maintenance', and `Curative Maintenance' (as respectively defined below) in respect of the Application Software. a. Preventive Maintenance shall comprise the routine inspection and testing by the Consultant of the Application Software and shall include daily backups to the application in the event recovery of the data must be conducted. b. Curative Maintenance shall comprise all or any of the following categories of services listed below which have been opted for by the Customer. i. Upon receipt of a request from the Customer, the inspection, testing and diagnosis of any fault reported in the Application Software. ii. Upon receipt of a request from the Customer, the carrying out of such repairs by issuing such fixed in relation to the Application Software of otherwise as judged necessary to remedy the fault reported. This also covers the provisions of upgrades and updates to Application Software due to bug fixes. Services to be provided in consideration of the Maintenance Charges shall not included Excepted Services. Excepted Services shall comprise of but shall not be limited to the diagnosis and rectification of a fault in the Application Software resulting from: a. The improper use, operation or neglect of the Application Software; b. Any repair, adjustment, alteration or modification of the Application Software by any person other than the Consultant without the Consultant's prior written consent; 2. Remote Support Services a. Help Desk Services within Normal Office hours as specified in the call window below; b. Support by Telephone and email 3. On Site Support a. Consultant shall provide onsite support in the event that the Support Services provided above is not able to resolve the issue at hand; b. On site shall be rendered if User has performed all recommended actions by Consultant's Support Services Personnel and has reported all the necessary diagnostic information including but not limited to error logs' print-outs, messages and relevant problem information c. All On-Site support shall be rendered within the Call Window as specified below. 4. Upgrades, Updates, Modifications and Enhancements (Full software Maintenance) a. Preventive and Curative maintenance services as specified in section 1 of Schedule II of the maintenance contract, modifications, further development and enhancements to application software shall be provided at no additional costs provided that such work do not exceed a total of $1,500 per year. For modifications, enhancements and/or development above the total $1,500 per year, Consultant shall forward the scope, duration and cost of such development to Customer for approval. Consultant shall proceed with the development only after the approval has been obtained. c. For bugs arising after the provision of the total of the above mentioned yearly effort, the Consultant will attend to the work upon request of the customer and shall accordingly send an appropriate bill to the Customer. Whenever major modifications are brought to the software covered in this Agreement, after discussion with Customer, Consultant shall provide: i. Implementation and Test Plan; ii. Migration Plan (with approval from user); iii. Basic Training iv. Documentation update on hard copy and/or magnetic media. 5. Upgrades, Updates, Modifications and enhancements (Normal Software Maintenance) a. Preventive and curative maintenance services as specified in section 1 of Schedule II of the maintenance Contract shall be provided at no additional costs. b. The Consultant will supply and aggregate number ofwork/person effort equivalent to $600 per year. Such work would be undertaken during the current contractual period for the purposes of carrying Preventive and curative maintenance services. For modifications, enhancements and/or development the company shall pay $100.00 per hour. Consultant shall forward the scope, duration and cost for such development to Customer for approval. Consultant shall proceed with the development only after this approval has been obtained. d. Whenever major modifications are brought to the software covered in this agreement after discussion with User, Consultant shall provide: i. Implementation and Test Plan; ii. Migration Plan (with approval from User): iii. Basic Training; iv. Documentation Update on hard copy and/or magnetic media. 6. Call Hours a. Monday to Saturday 7:00 a. m. to 5:00 p.m. Schedule III Schedule of Rates and Charges ^ 1. Annual Maintenance & Technical Support Services Covering Sections 1, 2, &3 of Schedule II $600. Annually. ^ 2. Full Service Maintenance Agreement Covering section 1, 2, 3 & 4 of Schedule II $1,500 annually, with development not to exceed 15 development hours. ~ 3. Standard Maintenance Agreement Covering sections 1, 2, 3 & 5 of Schedule II $600 annually plus $100 hourly rate for section 5.