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R16-032 RESOLUTION NO. R16 -032 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING AND AUTHORIZING THE CITY MANAGER TO SIGN AN AGREEMENT WITH e- BUILDER FOR • CAPITAL PROJECT MANAGEMENT SOFTWARE THROUGH A r PIGGYBACK OF GSA CONTRACT NUMBER GS- 35F -408AA IN THE AMOUNT OF $113,475 PLUS $2,000 FOR TRAVEL TOTALLING $115,475 FOR IMPLEMENTATION SERVICES AND 11 AN ANNUAL SOFTWARE LICENSE FEE OF $48,120 FOR A 1 TOTAL COST OF $163,595 AND PROVIDING AN EFFECTIVE 1► DATE. 1; 1. WHEREAS, the Utilities Department currently manages a significant number of 1. both large and small capital projects but does not have a dedicated system for managing both 1r the information flow and finances of the project in one location; and 1; WHEREAS, e- Builder is a suite of software packages that handles every aspect of 1! project management from the position of the buyer, unlike most project management 21 systems that are dedicated to the contractors and engineers; and 2 WHEREAS, the department is requesting the Commission to authorize the City 2► Manager to sign an agreement with e- Builder for Capital Project Management Software 2g through piggyback of a GSA Contract Number GS- 35F -408AA in the sum of $113,474 plus 2 $2,000 for travel totaling $115,475 for implementation services and an annual software 2. license fee of $48,120 for a total cost of $163,595. 2. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF 2r THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 2 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 21 being true and correct and are hereby made a specific part of this Resolution upon adoption 31 hereof. S: \CC \WP \Resolutions \R16 -032 - e- Builder for_Capital_ Project_ Management _Software_Agreement.doc 3 Section 2. The City Commission of the City of Boynton Beach, Florida does 3 ' hereby approve and authorize the . City Manager to sign an agreement with e- Builder for 3 Capital Project Management Software through piggyback of a GSA Contract Number GS- 3 35F -408AA in the sum of $113,474 plus $2,000 for travel totaling $115,475 for 3 implementation services and an annual software license fee of $48,120 for a total cost of 3 $163,595, a copy of which is attached hereto as Exhibit "A ". 3' Section 3. This Resolution shall become effective immediately upon passage. 3 , : PASSED AND ADOPTED this 16th day of February, 2016. 44 CITY OF BOYNTON BEACH, FLORIDA 4 4' YES NO 4:� 4 Mayor — Jerry Taylor 4• 4, Vice Mayor — Joe Casello 4 4: Commissioner — David T. Merker Z-0/ 4'% 5. Commissioner — Mack McCray 5 5 Commissioner — Michael M. Fitzpatrick ` 5: 5 , 5 VOTE 5 ATTEST: 5r 5: Aovr- 61 J 5hth A. Pyle, CMC 6 1terim City Clerk z 6 elpeD 4 6. ,(Corporate Seal) S: \CC \WP \Resolutions \R16 -032 - e- Builder_for_Capital Project_Management Software_Agreement.doc E- BUILDER SERVICE /6-Y2--- AGREEMENT e- Builder, Inc. whose address is 1800 NW 69` Avenue, Suite 201, Plantation, FL 33313 ( "e- Builder ") and Ordering Activity, as defined in GSA Order ADM4800.2G and as revised from time to time ( "Customer "), enter into this e- Builder Service Agreement (the "Service Agreement "). In the event of a conflict between any terms and conditions in this Service Agreement and the terms and conditions of the GSA Schedule 70 contract, the terms and conditions of the Schedule 70 contract shall control. The work to be performed for an "Ordering Activity" may be contained in one or more "Task Orders." 1. TERM. This Agreement shall continue for the period purchased by the Ordering Activity as set forth in the relevant task order. 2 SERVICES. 2.1 Services. e- Builder agrees to provide the services described in the relevant Task Order (the "Services ") to Customer subject to the terms and conditions of this Agreement, in consideration for the payments set out therein. Customer acknowledges that e- Builder Enterprise" software may be modified or upgraded from time to time, and that "Services" and `Customer Support" provided to Customer shall only include the use of the most recent version of e- Builder Enterprise ". • 2.2 License of Software. Customer's right to use the Services (including, without limitation, the limited license to use e- Builder Enterprise " software), is limited to the restrictions contained herein, including those related to the number of users, projects, annual capital program expenditures and/or period of use. The Customer acknowledges that title to and copyright in the software applications supplied by e- Builder (including e- Builder Enterprise") are reserved by e- Builder. Customer acquires no right in any software, copyrights, patents or any other intellectual property belonging to or licensed by e- Builder, other than the specific limited rights to the Services. e- Builder is and shall remain the sole owner of all copyrights, trademarks, patents and other proprietary rights in and to all aspects Qf the Services (including, without limitation, all software, code and designs used in providing the Services). 3. WARRANTIES 3.1 Representations. Customer represents, warrants and covenants the following to e- Builder: (i) Customer currently possesses all necessary licenses, permits, insurance and approvals required validly to execute, deliver and perform its duties under this Agreement and is qualified to do business in all jurisdictions where such qualification is required for Customer's performance of its duties under this Agreement, (ii) To the best of its knowledge and ability, Customer will comply with, and will use its best efforts to cause each subcontractor it may engage to comply with all applicable federal and state laws and regulations in performing its and their respective responsibilities under this Agreement and any subcontracts, and (iii) No information provided to e- Builder or disseminated through its software or systems shall infringe on or violate any trademark, copyright, trade secret, right of publicity or privacy (including but not limited to defamation), patent or other proprietary right of any third party. 3.2 Disclaimer of Warranty and Limitations of Liability. E- BUILDER DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM E- BUILDER'S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH E- BUILDER WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, E- BUILDER CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, E- BUILDER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. EXCEPT FOR THE WARRANTIES SPECIFICALLY AND EXPRESSLY MADE HEREIN AND ANY WARRANTIES SPECIFICALLY PROVIDED IN THE GSA SCHEDULE 70 CONTRACT, E- BUILDER MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED, AND ALL SUCH WARRANTIES ARE DISCLAIMED. FOR ANY ONE OR MORE BREACH OF THIS AGREEMENT OR DEFAULT HEREUNDER, THE ENTIRE LIABILITY OF THE PARTY IN BREACH OR DEFAULT, AND THE EXCLUSIVE REMEDY OF THE OTHER PARTY, SHALL BE PAYMENT OF THE ACTUAL DAMAGES PROXIMATELY CAUSED BY SUCH BREACH OR DEFAULT, WHICH SHALL NOT EXCEED THE AMOUNT OF ONE (1) MONTH'S FEES PAID BY CUSTOMER HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOSSES, OR EXPENSES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT. THESE LIMITATIONS ON THE LIABILITY OF EITHER PARTY SHALL APPLY TO ANY AND ALL CAUSES OF ACTION THAT EITHER PARTY MAY HAVE AGAINST THE OTHER, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING A CLAIM, DEMAND OR ACTION, INCLUDING, WITHOUT LIMITATION, WHETHER IT SOUNDS IN CONTRACT OR TORT, BUT SHALL NOT APPLY TO OR LIMIT SUMS DUE HEREUNDER TO E- BUILDER FOR SERVICES. This clause shall not impair the U.S. Government's right to recover for fraud or crimes arising out of or related to this Contract under any federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729 -3733. Furthermore, this clause shall not impair nor prejudice the U.S. Government's right to express remedies provided in the GSA Schedule 70 contract (e.g., clause 552.238 -75 — Price Reductions, clause 52.212 -4(h) — Patent Indemnification, and GSAR 552.215 -72 — Price Adjustment — Failure to Provide Accurate Information). E- BUILDER - SERVICE AGREEMENT 3.3 Indemnity. e- Builder agrees to indemnify and hold harmless the Customer (for services rendered under a Task Order, as applicable), , its officers, directors, employees or agents from and against any claims made upon it by any third party, arising out of information or software provided by it or actions of its employees, agents or invitees. 4. AUDIT RIGHTS. e- Builder will have the right, during normal business hours and upon at least five (5) days prior written notice, to have an independent audit firm selected by e- Builder audit Customer's records relating to Customer's activities pursuant to this Service Agreement in order to verify that Customer has complied with the terms of this Agreement Such audits will be conducted no more than once in any period of twelve (12) consecutive months, and e- Builder will adhere to any security measures required by the Ordering Activity. 5. CONFIDENTIALITY. Confidential Information refers to all nonpublic information provided by one party to the other, but it does not include this Service Agreement. The Parties agree that, except to the extent necessary to implement the terms and conditions of this Agreement, when authorized in writing by the other Party or when otherwise required by law: (i) each Party will preserve and protect the confidentiality of the other Party's Confidential Information; (ii) neither Party will disclose to any third party the existence, source, content or substance of the other Party's Confidential Information, or make copies of such Confidential Information except as required by this Agreement; (iii) neither Party will deliver the other Party's Confidential Information to any third party, or permit such information to be removed from the premises of the Party receiving such information; and (iv) each Party shall advise any of its employees or agents working on or having access to the other Party's Confidential Information of the confidentiality of such information. 6. MISCELLANEOUS 6.1 Governing Law and Venue. This Agreement shall be governed by and interpreted in all respects in accordance with the laws of the State of Florida, United States. 6.2 Notices. All notices required or permitted to be sent pursuant to this Agreement shall, unless otherwise specifically provided, be in writing and shall be deemed given when delivered personally or by facsimile, overnight air courier or certified mail (postage prepaid, return receipt requested), to the addresses shown above or such other substitute address designated in writing. 6.3 Force Majeure. Notwithstanding any other provision of this Agreement, if by reason of Force Majeure, any Party is unable to perform certain of its obligations under this Agreement it shall be automatically relieved of those obligations to the extent, and for the period of time, that such Party is prevented from meeting them by Force Majeure. E- BUILDER, INC. "Customer" By: By: Title: • Title: Date: Date: • �;�r�i�Buiider' CONFIDENTIAL Disclosure Statement This Task Order, is between e- Builder, Inc. ( "e- Builder ") and Port Canaveral ( "Customer"), and is dated August 14, 2015 (the "Effective Date "). This Order Form incorporates by reference the terms and conditions of the GSA Service Agreement dated MONTH DAY, 2015 between ,e- Builder and Customer. In the event of an inconsistency between the terms of this Task Order and the Service Agreement, the terms of the Service Agreement shall control. The term; of this Task Order shall commence on the Effective Date and end on MONTH DAY, YEAR. Customer may renew this Order Form by providing notice of renewal to e- Builder at least sixty (60) days prior to expiration of the then current term. Each renewal term shall be for a period of not less than one (1) year, unless agreed otherwise. The information provided in this document shall not be disclosed outside the recipient's organization and shall not be disclosed in whole or in part for any purpose other than to evaluate the information. During the evaluation process, the recipient may duplicate this document only for distribution to evaluators within the recipient's organization. If a contract is awarded to e- Builder as a result of or in connection with the submission of this information, the recipient shall have the right to duplicate, use or disclose the information to the extent provided in the contract. This restriction does not limit the right of the recipient to use information contained if it is obtained from another source without restriction. In the event that the recipient is served with a request to disclose any or all of e- Builder's confidential information pursuant to the requirements of applicable law, a judicial or governmental request, requirement or order or otherwise, e- Builder asks to be promptly notified in order to provide sufficient time to object to such request, understanding that the recipient will take reasonable steps to cooperate with and assist e- Builder in contesting such request, requirement ,or order or in otherwise protecting e- Builder's rights prior to disclosure. © Copyright e- Builder Inc., 2015 e-Builder Order Form: City of Boynton Beach Page 1 Builder CONFIDENTIAL Investment Summary The following details the investment summary for the Annual Software Subscription and the One -Time Implementation & Development Services for the e - Builder EnterpriseTM system. Annual Software Subscription Annual Item Scope Variable Annual Price Number of Users Up to 50 users $48,120 The license investment reflects the GSA /e- Builder agreement under SIN #132 -52 /Part Number EB -ENT. Total Annual Subscription $48,120 One -Time Implementation & Development Services Item Scope Variable Price e- Builder Enterprise Per Implementation & $113,475 Implementation, Setup, Development Services Scope Deployment & Training section below Total Implementation Services $113,475 Total e- Builder Enterprise Investment — Year 1 Item Price Total Annual Software Subscription $ 48,120 Total Implementation & Development Services $113,475 Total Year 1 Investment $161,595 Proposal GSA Detail SIN Labor Category Discounted Rate Hours Price 132 -51 Consultant $175.00 525.0000 $ 91,875 132 -51 Project Manager $165.00 130.9091 $ 21,600 GSA Implementation Proposal $113,475 Payment Terms • Payment of the first (1st) year's license term is due upon signing of this Order Form. • Fees for Professional Services shall be invoiced, and be due and payable, as follows: • 25% due upon delivery of the Implementation and training schedule. • 25% due upon completion of the design and delivery of functional specifications. • 25% due upon completion of configuration and user acceptance testing (UAT). • 25% due upon completion of user training. e- Builder Order Form: City of Boynton Beach Page 2 -Builder I} CONFIDENTIAL • Travel and Expenses - Travel expenses and course material reproduction (if requested) are not included in the above investment. These expenses are billed as incurred as actuals. The Not to exceed amount for the travel and expenses is $2,000. Annual Subscription Includes • Unlimited Projects • Unlimited Document Storage • 24x7 Technical Support • Quarterly Enhancement/Upgrades • Maintenance Releases Unlimited User License The proposed annual subscription fees for Unlimited e- Builder Enterprise Users is based on the City of Boynton Beach's annual Capital Spend Program. e- Builder reserves the right to adjust the fee accordingly to align with the City of Boynton Beach's annual Capital Spend Program. e- Builder Order Form: City of Boynton Beach Page 3 CONFIDENTIAL '%■■�' Implementation & Development Services Scope Phase & Deliverables Scope Comments Project Kickoff & Discovery Kick Meeting Included 2-4 weeks after contract execution . Implementation Goals Included Defined during Kickoff • Success Matrix Included Defined during Kickoff Initial Project Schedule Included Defined during Discovery Data Gathering Guide Included Defined during Discovery Project Design & Requirements Solution Document Included Requirements & Solution Design Project Configuration & Test nQ Home Projects Core Modules Calendar Contacts Setup Planning Module Not included Cost & Funding Module 1 Process Module 3-Processes Structured Workflow(s). Payment Application, Purchase Requisition, Potential Change Order Forms Module 3-Forms +60 Standard Forms Schedule Module 1 Document Module 1 Bidding Module Standard Dashboard Module 2-Dashboards +1 Admin Dashboard Reports Module 2-Reports +120 Standard Reports Submittal Module Standard Time Tracking Module Not included • |nnpmrtToo|hit Standard +UseTraining Project Training 0^Adoption Admin Tra ning 1- Session Onsite 3 days Duration/S Users Maximum End User Training 2- Sessions Onsite 2 days Duration Each/15 Users Maximum Train 1- Session Onsite 3-days Duration/8 Users Maximum Onsite Support Hands On 1- Session /4 Days Duration _ . _ ___���_���'������������ e-Bu Order Form: City of Boynton Beach Page 4 CONFIDENTIAL T"BuiIdee�`:` Phase & Deliverables Scope Comments Project. Kickoff & Discovery Adoption Calls 4 - Calls Customer Responsibilities & implementation Assumptions The following responsibilities and assumptions are necessary for the successful completion of this implementation. In the event that an item below does not occur in the manner or time frame defined, e- Builder may request to meet with the Customer and mutually agree upon an adjustment to the schedule, work activities and fees. • The Customer will make best efforts to ensure the committed participation of all appropriate technical and user personnel throughout the project, including but not limited to periodic status reviews. Customer resources provided during the technical and functional sessions must be empowered to make decisions on project direction. • The e- Builder implementation team will work jointly with the Customer team to resolve all issues including those impacting the scope and timeline. Issues that may impact the progress and the schedule will be documented. If the issue is critical, e- Builder will present the issue to the Customer in writing as quickly as possible. Once the issue is presented in writing the Customer is expect to respond within two (2) business days. If the issue cannot be resolved within two days, they will notify e- Builder and arrange a meeting with all relevant personnel to resolve this issue. Failure to do so could impact the cost and schedule of the e- Builder implementation project. • All necessary content (data, text and graphics) will be provided to e- Builder prior to the creative processes (if applicable). • The Customer will reimburse reasonable travel expenses for any travel associated with the engagement. • Unless specifically identified as deliverables within this document, Customer will enter any historical data from past projects to enable historical analysis. • Unless specifically identified as deliverables within this document, data migration, system integrations or custom development of any kind is not included within the scope of the e- Builder implementation project. These items can be included through the change management process if identified as required items. • All requests e uests received and approved will be listed on a contract Addendum or Work Order. q Each Addendum or Work Order must be signed and accepted prior to initiating additional work by the e- Builder. e- Builder, Order Form: City of Boynton Beach • Page 5 • ■