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HomeMy WebLinkAbout25B - AGMT - PD TRAINING SOFTWAREREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 17, 2016 TITLE: AGREEMENT WITH POWER DMS FOR POLICE DEPARTMENT TRAINING SOFTWARE {STRATEGIC PLAN NOA, 5} CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 09200M ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached three -year agreement with Power DIMS for the purchase and maintenance of training software for the Police Department, for the period of May 17, 2016 through May 16, 2019, in the amount of $53,001, which includes a $5,000 contingency, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The mission of the Santa Ana Police Department's Training Division is to provide high quality, professional training to our personnel. The purchase of PowerDMS software provides an all - inclusive solution for the electronic maintenance and administration of policies, certification, and other document -based elements. The software will allow us to maintain employee training records in a central location, with added audit and control features. Additionally, it will provide the department the platform to increase efficiencies in the request and approval of training by utilizing built -in workflow solutions. The software will allow management to disseminate training to employees in both electronic and video form with a feature to verify comprehension by on -line tests and electronic signature, which will ensure that employees will remain compliant with federal, state and Department regulations. Proper training provides law enforcement personnel with the tools necessary to deliver professional police services to the community. This agreement was originally approved by City Council on February 16, 2016. The vendor has requested additional substantive changes that have been reviewed, approved and incorporated into the agreement by the City Attorney's Office. The revised agreement includes changes to the Indemnification section of the agreement, including limits on liability, and each party's responsibility in the event of data loss. The Termination section was also modified to allow termination by both the City and the Contractor. In addition, Exhibit A of the agreement further defines how the City can use the Contractor's software subscription services. The three -year agreement will be for the period of May 17, 2016 through May 16, 2019, in the amount of $53,001. This amount includes $13,006 for the software subscription and $7,800 for training in year one, $13,398 for the software subscription in year two, and $13,797 for the software 2513-1 Agreement with PowerDMS for Police Department Training Software May 17, 2016 Page 2 subscription in year three, and a $5,000 contingency for unanticipated and /or necessary improvements, for a total not to exceed amount of $53,001. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 Community Safety; Objective #5 (provide high quality Police and Fire /Emergency Medical Services response within the City of Santa Ana). FISCAL IMPACT Funds for this agreement will be budgeted as follows FY 2015 -16 $20,806 Account no. 12814413 62300 2014 BSCC Grant FY 2016 -17 $13,398 Account no. 01114410 62300 PD Training Contract Svcs. FY 2017 -18 $18,79 7 Account no. 01114410 62300 PD Training Contract Svcs. Total $53,001 Carlos Rojas Chief of Police Santa Ana Police Department Exhibit: 1. Agreement with Power DIMS APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director f- Finance and Management Services Agency 25B -2 SOFTWARE AND SUPPORT AGREEMENT THIS SOFTWARE AND SUPPORT AGREEMENT, made and entered into this 17th day of May, 2016 by and between Power DMS (hereinafter "Contractor "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a Contractor having special skill and knowledge in the field of providing law enforcement training management software. B. Contractor represents that Contractor is able and willing to provide such services to the City. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall provide software and support as needed for the Power DMS service as outlined in the attached Exhibits "A" and "B." City's use of the PowerDMS service shall be subject to the provisions set forth in Exhibit "A ". 2. COMPENSATION A. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. Specifically the City will pay 1. Year 1: $13,006 for the software subscription and $7,800 for training on operation of the software; 2. Year 2: $13,398 for the software subscription; 3. Year 3: $11 797 for the software subscription; and 4. Contingency: $5,000 for unanticipated expenses at the sole discretion of the City. B. The total sum to be expended under this Agreement shall not exceed $53,001.00 over the term of this Agreement. This includes a $5,000 contingency for unanticipated expenses as the sole discretion of the City. C. Payment by City shall be made upon receipt ofproper invoice evidencing the subscription to be provided, subject to City accounting procedures. 25B -3 3. TERM This tern of this Agreement shall be for a three year (3) year period commencing on May 17, 2016 and terminating on May 16, 2019, unless terminated earlier in accordance with Section 12 of this Agreement. 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Cyber Liability insurance in the amount of $1,000,000 per occurrence. b. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: 1. Contractor shall maintain all insurance required above in fall force and effect for the entire period covered by this Agreement. 2. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. 3. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. c. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect 2 25B -4 Contractor's right to be paid for its time and materials expended prior to notification of termination. 6. INDEMNIFICATION; DISCLAIMERS; LIMITATION OF LIABILITY A. Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Contractors, special counsel, and representatives from liability arising from any third party claim (a "Claim ") for personal injury, damages, j List compensation, restitution, judicial or equitable relief, to the extent the same are directly and proximately caused by Contractor's breach of this Agreement or the gross negligence or willful misconduct of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the set-vices described in section 1 of this Agreement. The Contractor further agrees to pay all reasonable costs for the defense of the City, including fees and costs for legal counsel to the extent attributable to any Claim. City may make all reasonable decisions with respect to its representation in any legal proceeding; provided, however, that Contractor shall not be responsible for the fees and costs for separate legal counsel retained by the City regarding any Claim. The indemnification obligation set forth in this paragraph shall be subject to the limitations set forth in this Section 6, B. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CONTRACTOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONNFRINGEMENT. THE CONTRACTOR TECHNOLOGY IS PROVIDED TO CITY ON AN "AS IS" AND "AS AVAILABLE" BASIS. CITE' IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER TIME SUBSCRIPTION SERVICES ARE SUITABLE FOR CITY'S PURPOSES. CONTRACTOR DOES NOT WARRANT THAT USE OF THE CONTRACTOR TECHNOLOGY WILL BE ERROR -FREE OR UNINTERRUPTED. CONTRACTOR MAKES NO WARRANTY THAT THE CONTRACTOR TECHNOLOGY COMPLIES WITH THE LAWS OF ANY JURISDICTION OUTSIDE THE UNITED STATES. C. Except with regard to liability for the indemnity obligations under this Section 6 with respect to indemnification claims arising from the breach by Contractor of third party intellectual rights or City's breach of Section l of Exhibit A, in no event will either party's aggregate liability exceed the Subscription Fees required to be paid by the City to Contractor during the twelve (12) month period ending on the date on which the relevant claim is submitted. In no event will either party be liable for any indirect, special, incidental, consequential damages of any type or [rind (including, without limitation, loss of data, revenue, profits, use or other economic advantage). 25B -5 D. If the Subscription Services are impacted by any incident resulting in data loss, Contractor will take commercially reasonable steps to restore the City Content from the most recent existing, unaffected backup available. Contractor makes no representations or warranties regarding its ability to recover any City Content lost, and City acknowledges that it is responsible for conducting its own regular backups of City Content through the Subscription Services. E, Third party services or content might be accessible tluough the Contractor Services. Contractor is not responsible for, and makes no warranty respecting, any such services or content. CONFIDENTIALrITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source, (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Contractor covenants that, to the best of its knowledge, it presently has no interests and shall not acquire any interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. No persons having such interest shall be knowingly employed by or associated with Contractor. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: r To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax (714) 647 -6956 With courtesy copies to: And Chief of Police, Santa Ana Police Department City of Santa Ana 60 Civic Center Plaza (M -97) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 245 -8007 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 647 -6515 To Contractor: Power DMS P.O. Box 2468 Orlando, Florida 32802 Fax (407) 264 -6144 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by snail, any communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty -tour (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDdIENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In 25B -7 the event of a conflict between the terms of this Agreement and any attachments hereto, the terns of this Agreement shall prevail. This Agreement may not. be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terns or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed (a) to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City, or (b) to prevent the assignment of this Agreement by Contractor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Contractor's assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. 12, TERMINATION This Agreement may be terminated by the City with thirty (30) days written notice. in such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination. Either patty may terminate this Agreement at any time in the event that the other party (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof; or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law, or is wound up or liquidated, voluntarily or otherwise. 13. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, perfonmance, and enforcement of any of the clauses of this Agreement r shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15, COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS Contractor shall carry out all services pursuant to this Agreement in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if frilly set forth in the body ofthis Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney n Laura A. Rossini Senior Assistant City Attorney DAVID CAVAZOS City Manager CONTRACTOR POWER DMS By: 25B -9 Tax. ID (Name) (Title) RECOMMENDED FOR APPROVAL: CARLOS ROJAS Chief of Police [Power 1DMS signature pages] 25B -10 EXHIBIT A Service Description See attached Statement of Work, Provisions Applicable to City's Use of Software: Contractor provides services ( "Contractor Services ") using Contractor's software ( "Contractor Software ") and access- controlled website ("Contractor Site ") which City desires to use for the management of City's documents, records and data (collectively, "City Content "); and City desires to obtain a subscription ("City Subscription ") for certain Contractor Services in accordance with the provisions of this Agreement Use of Subscription Services. a) Subject to the terms and conditions of this Agreement, Contractor grants City and City's designated users ( "Users ") the nonexclusive right to use the Subscription Services during the Subscription Terri. b) Neither City nor any User will (i) modify, translate, or create derivative works of the Contractor Services, Contractor Software or Contractor Site (collectively, "Contractor Technology "); (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Contractor Software's source code or any other technology used by Contractor to provide the Contractor Service; (iii) sublicense, resell or distribute any Contractor Technology in any manner or form; (iv) share login credentials for the Subscription Services with other parties; (v) "frame" or "mirror" the Contractor Services or Contractor Site; or (vi) use or permit. any User to use the Contractor Technology from any location outside of the United States, c) City is responsible for maintaining the security and confidentiality of all User usemames and passwords and for all activities that occur under City's User accounts. City agrees to notify Contractor immediately of any unauthorized use of any username or password or account or other known or suspected breach of security, d) City will have sole responsibility, and Contractor assumes no responsibility, for the City Content. Without limiting the foregoing, City will not submit, or permit any of its Users to submit, to the Contractor Services any City Content or other materials (collectively "Restricted Materials ") that are • Illegal or illegally created or obtained; • false or misleading; • defamatory; • indecent or obscene; • threatening; • infringing of any third party rights; 25B -11 • nivasive of personal privacy; • subject to mandatory public disclosure by Contractor except in accordance with City's written instructions to Contractor; • protected by the flealth Insurance Portability Accountability Act (HIPAA); • Restricted Data, as that term is defined in Title 28, Part 20, Code of Federal Regrda6ons; or • Personally Identifiable Information (I'll), other than the PIt respecting each User required for such User to be able to log into and utilize the Subscription Services. e) City shall comply with all applicable taws in using the Contractor Services. f) Contractor tray, from time to time, adopt and update rules for permitted and appropriate use of the Contractor Services. Upon delivery to City, or publication on the Contractor Site, of any such piles or updates, any further use of the Subscription Services by City and City's Users shall be subject to such rules. g) Contractor reserves the right, in addition to any other remedies available to it, to suspend any User account or User activity if Contractor believes such account or activity (i) is the source of disruption of the Contractor Services or harm to the systems or infrastructure of Contractor or any third party, (ii) is being used to conduct illegal activity or activity that could potentially expose Contractor to legal liability, or (iii) has been used to submit Restricted Materials to the Contractor Services, or (iv) otherwise violates the terms and conditions set forth in this Agreement or any rules adopted by Contractor with respect to the use of the Contractor Services. It) The Contractor Services are subject to modification from time to time at Contractor's sole discretion; provided that any such modification will not degrade the functionality of the Subscription Services in any material manner, except as required by applicable law. Contractor will use reasonable efforts to give City prior written notice of any material modification. 2. City Content. a) As between City and Contractor, all City Content submitted to the Contractor Services by City or by City's Users will remain the sole property of City or such Users. Subject to the terns and conditions of this Agreement, City grants to Contractor a non - exclusive license to use, copy, store, transmit and display City Content to the extent reasonably necessary (i) to provide, maintain and improve the Contractor Services and (ii) to confirm compliance with the terms of this Agreement. b) During the Term of this Agreement, City may extract City Content at any time through the Subscription Services. For a period of ninety (90) days after the end of the Term, City Content will be furnished to City upon written request. Thereafter, Contractor shall have no further obligation to retain any City Content. c) Except as authorized by City (in this Agreement or otherwise) or required under applicable law, Contractor shall not disclose any City Content to anyone other than Contractor's to 25B -12 employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform Contractor's obligations hereunder. The confidentiality obligations set forth in this paragraph (i) wilt survive for one (1) year after the termination or expiration of this Agreement, and (ii) do not apply to City Content which is (A) already in the possession of Contractor and not subject to a confidentiality obligation to City; (B) independently developed by Contractor; (C) publicly disclosed through no fault of Contractor; or (la) rightfully received by Contractor from a third party that is not under any obligation to keep such information confidential. 3. Ownership of Contractor Technology, Contractor retains all rights in the Contractor Technology, including, without limitation, any intellectual property developed by Contractor during the course of its performance of any services for City, Except as expressly provided in this Agreement, no license or other right is granted to City or its Users in the Contractor Technology, The Contractor name, the Contractor logo, and the product names associated with the Contractor Technology are trademarks of Contractor or third parties, and they may not be used without Contractor's prior written consent, 25B -13 EXHIBIT B- STATEMENT OF WORK 12 25B -14 PowerDM t8007495 104 P107210.0113 u+anv pow ardor; coin 1015 - Garland Ave, Ste 300 Orlando, FL. 32801 New Subscription Quote Account Number A -135 Order N: 0000292 Customer: Santa Ana Police Department (CA) Order Date: 05/ 17/2016 Sides Rep. TinfSaunders Valid Until: 05/20/2016 Subscription Start Date; 05117/2016 Initial Term: (2 Ice Marry Phone: Address; 60 Civic Center Plaza Pax; Billing Method: Email Notes: Three year agreement with payment due each year at start of Payment Method: Cheek term; Payment Term: Not 30 Year one total cost (.subscription and services )- $20,806(invoiced upon PO Number: execution of contract) Year two total cost (subscription only w 3 %)t $13,398. (invoiced Pot start of year two of subat:nption) Year three total cost (subscription w 3%): 511,797 (invoiced Par start oryear three of subscription) Procter t Description Tyrn, ON Unit Price "and price SDMS -AS Annual PowarDhtS,com hosted subscription fee Recurring 700 User $18.38 $13,006.00 SDMS -A$ Annual PowerDblS.pom hosted subscription Fee Recurring 700 User $19.14 .$13,398.00 SDMS :AS Annual PowerOMS.com hosted subscription fee Recurring 700 User $19.71 $13,797,00 400 documents ha cled; Up to 24 hours of remote (raining; Two days of onsite training (16 PRENIlU41 hours)4 Project management assurance, Access One =Pima 1 $7,80000 $7,800.00 to our Self -paced teaming portal, live training webhen% training tutorials ,and quickslteets- Total S48,101,00 Fvyiuem Terms All invoices issued heramider ore due upon the invoice ddu date. The fees sal Furth in Chia Quotation Shear are exclusive oFall applimbla Fa�as, ta¢ios, or duncs iiopasod by tiring miniatures and Customer Act be responsible far rare IOur of 'ay, Such npplicabie tares, Iaeies. or dudes. All payanent ohligntions are ace- cmme [lab lq end all fees paid are non•c4uudeblc. Terror & Condairm Unless otherwise agreed is writing by PcoverDNIS mid Licensee, this Qnuradco Sheet and the services to be finished panuaat tot his Quotation Shaer are subject to the terms and conditions rot lanb Irmw hit. uanamavc"bav"ac rernuwvrdmuutl9•.n. The Effcmina We. t,odcbsed in the oalow temrsand cotidnlons cries SuRware as a Service Agrecnmiq shall he die data set Forth balut4. Santa Ana Police Department(("') Title: Date: THE I:NFORMAXION AND PRICING CONTAINED IN THIS QUOTATION 51IECT IS STRICTLY CON K lUNT I AI, 25B -15 25B -16