HomeMy WebLinkAbout6/1/2016 - STAFF REPORTS - 2.K. 4O�Y A L M Sp4
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Cg41FO % CITY COUNCIL STAFF REPORT
DATE: JUNE 1, 2016 CONSENT CALENDAR
SUBJECT: APPROVE ONE (1) ADDITIONAL YEAR TO ANNUAL SOFTWARE
MAINTENANCE AGREEMENT FOR WEB BASED REGISTRATION FOR
PROGRAMS AND FACILITY RENTALS
FROM: David H. Ready, City Manager
BY: Parks and Recreation
SUMMARY
The City's Recreation Division purchased and installed a third party web based
registration system in 2006 that is hosted by The Active Network, LLC for the purposes
of the programs, facility rentals and events that are conducted at the City's Park and
Recreation locations. The system has been successfully operating and maintained over
the past eight (8) years.
RECOMMENDATION:
1. Approve a software maintenance and usage agreement in a form acceptable to
the City Attorney for a one (1) year term with The Active Network, LLC for their
web based registration, facility rentals, etc. proprietary system.
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
In 2006, the City entered into an agreement with The Active Network, LLC to install and
operate their third party administrator web based software system for the purposes of
streamlining and processing all registrations for the Parks and Recreation Department's
recreational events. In order for the system to be properly maintained and updated, the
city must enter into an annual software maintenance and usage agreement.
The annual software maintenance agreement is not a fixed annual cost agreement and
the amount of the usage of the system determines the amount of the annual fees paid
to The Active Network, LLC. As a result, the Parks and Recreation Department has
reviewed the records of the past three (3) years. The monthly fees paid to The Active
Network are based on the revenue generated through the web based system. The
ITEM NO. 'Y, . K .
City Council Staff Report
June 1, 2016 -- Page 2
Annual Software Maintenance
current rate is 1.5% of every dollar entered into the system for payments, and will
remain unchanged for the term of the additional one-year extension.
FISCAL IMPACT:
Based on the past history and the estimated activity, the estimated cost is $ 24,000. The
cost of this contract is a budgeted expense and funds are allocated each year in the City's
Recreation Division budget, General Fund Account No. 001-2510-42920, PC/Hardware &
Software Maintenance.
ICKI OLTEAN ;5AEMS THOMPSON
Director Chief of Staff/City Clerk
DAVID H. READY, Es
City Manager
Attachments:
Hosted Global Services Agreement
02
Hesteo Software License&Services Agreement and security of any information that you retrieve from our servers and
` Tliis Hosted Software License &Services Agreement('Agreement") is shall prevent any unauthorized or illegal use or dissemination of such
made effective as of the last date set forth below('Effective Date') and information, All information collected by Active shall be jointly owned
entered into between The Active Network, Inc., 10182 Telesis Court, by Active and you.
San Diego, CA 92121 ("Active' or 'we' or 'us') and PALM SPRINGS 4. . Privacy. Each party shall comply with all applicable laws,
PARKS &RECREATION("you"or'your" or'Agency). Active agrees to regulations and guidelines governing online privacy, including Active's
provide you the Services (as defined below) subject to the following privacy policy as published on its website, in fulfilling its obligations
terms and conditions: hereunder and in collecting and using personal information about users
1. Services. Active will provide you with access to certain of its of the hosted website.
hosted software products ('Products') as well as applicable related 5. Fees.
services and support('Services')as are more particularly described in a) Active shall collect registration fees charged by you for
Exhibit A attached hereto, which identifies functionality, features, individuals that register for your activities and events online through the
options and fees related to the Products and Services you have hosted website and remit to you those sums to you bi-monthly unless
elected to receive. To assist us in the delivery of the Products and otherwise indicated in Exhibit A, less Active's service fees provided as
Services, you agree to provide us with certain information requested by consideration for the Products and Services as set forth in Exhibit A.
us relating to your organization. Any and all software or hardware All fees due to Active as consideration for its delivered Products and
specified in Exhibit A and provided under this Agreement as part of the Services are non-refundable. All registrations are calculated on a per
Products are deemed delivered F.O.B. origin, which for software will single registrant per single event basis. If you have agreed to a
typically be an Active provided downloadable FTP link. minimum volume commitment in Exhibit A, Active also has the right to
2. License to Intellectual Property/Promotion. charge fees owed to it by you if your organization is not meeting its
a) Active shall retain all right, title and interest in and to its agreed volume commitments throughout each year and may collect
Products and any underlying software,patents,copyrights,trademarks, those funds via invoice, or directly by netting them from any account
service marks, logos and trade names worldwide ('Intellectual balance you maintain with Active. Active may also reimburse itself for
Property') subject to the limited license provided by this Agreement. any credit card charge backs or overdue fees owed by you out of the
You shall use the Intellectual Property only as provided, and shall not registration fees it collects on your behalf and/or by debiting your
alter the Intellectual Property in any way, or act or permit action in any account. All fees and prices listed on Exhibit A are in US Dollars
way that would impair Active's rights in its Intellectual Property. You unless otherwise specified. The prices listed are for the current version
acknowledge that your use of the Intellectual Property shall not create of the Products and include improvements and enhancements to the
in you or any other person any right, title or Interest in or to such delivered version of the Products provided under this Agreement as
Intellectual Property. Any goodwill accruing from the use of the available and provided you have maintained a current agreement with
Intellectual Property shall inure solely to the benefit of Active. Active.
b) Active hereby grants to you a limited, non-exclusive, non- b) Products and Services prices may change for any new Products
transferable license (i) to use the Products solely in accordance with and Services as well as significant upgrades and updates that are not
Active's specifications,_ and (it) to display, reproduce, distribute and deemed by Active as supported version enhancements. Prices may be
transmit in digital form Active's name and logo in connection with increased up to 5% annually to cover cost increases such as inflation
promotion of the Products and/or Services as communicated to you by and cost-of-living.
Active. You hereby grant to Active a limited non-transferable license c) Unless you provide Active with a valid and applicable exemption
to use, display, reproduce, distribute, modify and transmit in digital or certificate for your Agency, you will be solely responsible for, and will
printed form information provided by you relating to your organization, pay, any and all use, excise, sales or privilege taxes, duties, value
which may include your organization's name, trademarks, service added taxes, fees, assessments or similar liabilities however
marks and logo, in connection with the implementation and promotion denominated chargeable by a governmental authority as a result of any
of the Services for you and the promotion of your organization for your service or deliverable provided under this Agreement, exclusive of
benefit. taxes on Active's net income.
c) You will make reasonable efforts to promote and encourage d) In the event you are entering into this Agreement and seeking
adoption of the Services and the availability of online registration, the Services for the benefit of a third-party event or organization("Third
which may include displaying Active's name and logo in any Party Beneficiary'), you agree as follows: (i)we may send registration
newsletters, printed registration forms or mailings provided by you to fees collected by us directly to the Third Party Beneficiary, and(ii) you
prospective participants (e.g. by inserting the following statement in shall indemnify us for any claims, loss or expenses (including
any online or print media related to your event or activity: 'Online attorney's fees) brought by the Third Party Beneficiary that relate to or
Registration Powered by Active.com'). arise from your negligence, wrongdoing or lack of authority to act on
d) Agency elects to receive notifications of free product, behalf of such third party.
promotional hems and giveaways through the Active program known 6. Smart and Service Fees Applicable support, training and
as ActiveRewards. Active will offer the Agency (and for the purposes professional services fees are more specifically described in Exhibit A.
of Clarification not to your users) opportunities for free product, All Fees set forth in this Agreement and in Exhibit A that are not
promotional items and giveaways at your event(s) or facilty(ies) as directly collected by Active as part of the registration fees will be due
applicable,the exact manner and type of which will be mutually agreed from you within 30 days of invoice date. Any Fees rendered later than
upon by you and Active upon your acceptance of a particular program. this deadline shall accrue interest at the annual rate of 10% per
e) Agency understands that some of Active products may contain annum. In the event of delay in paying a Fee, you shall reimburse
Active or third party promotions or offers to users and such offers will Active for any legal fees incurred by Active in its collection efforts.
be made to individuals on an opt-in basis. Active (and any such third Active, at its option, may debit from your account any overdue amounts
party) shall be responsible for administration and customer service owed by you to Active from funds collected by Active on your behalf.
issues on any such offer or promotion. 7. Disclaimer of Warranty/Limitation of Liability. OTHER THAN AS
3. Information Security. Active collects certain information, CONTAINED IN THIS AGREEMENT, ACTIVE EXPRESSLY DISCLAIMS ANY
including names, addresses, credit Card information and Other WARRANTY THAT THE USE OF ITS PRODUCTS OR SERVICES WILL BE
information required by you and for the delivery of the Products and UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL
Services, from individuals registering for your event or activity through MEET YOUR REQUIREMENTS. ALL PRODUCTS AND SERVICES OF ACTIVE
the hosted website(s). Such information shall be stored on a secure ARE PROVIDED TO YOU ON AN "AS-IS" BASIS WITHOUT WARRANTIES OF
remote server You may access this information at any time by ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
downloading it from our servers using your private password and WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
'login' identifier. If you are unable to access your registrants' PURPOSE. ACTIVE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL,
Information through the event director portion of the hosted website, CONSEQUENTIAL, OR LOST PROFIT DAMAGES. ACTIVE'S TOTAL LIABILITY
Active will make available such information to you via e-mail, fax or FOR ANY MATTER ARISING FROM OR RELATED TO THIS AGREEMENT IS
airmail upon request. You will be responsible for protecting the privacy LIMITED TO THE AMOUNT OF FEES ACTUALLY RECEIVED FROM YOU AS
1
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CwIthin
IDERATION THE PRODUCTS AND SERVICES R ED receive payments; or(ii)the Agreement in connection with any sale pf
UND or any other transaction involving the transfer Of more than fifty pNaen(
arm and Termination. Unless expressly provided to of its voting securities or assets. This Agreement shall be governed by
ry' in Exhibit A attached hereto, the term of this Agreement shall the laws of the State of California. Any legal action or proceeding
r 3 years from the Go-Live Date of the Hosted Software, with relating to this Agreement shall be instituted only in any state or federal
atic renewals for 3 year terms thereafter (each a 'Renewal court in San Diego County, California. This Agreement contains the
) until either party gives written notice to terminate thi entire understanding of the parties regarding the subject matter and
ment no less than 12 calendar months prior to can only be modified by a subsequent written agreement executed by
encement of a Renewal Term. Either party may terminat his moth parties. Any 'dick-wrap' agreement, terms of use, electronic
ment: (a) upon a material breach by the other part such acceptance or other terms and conditions which attempt to govern the
is not cured within thirty(30)days following wrifte ice to the subject matter of this Agreement that you might be required to
ing party; or (b) where the other part jact to a filed acknowledge or accept before using an Active product are of no force
ptcy petition or formal insolve roceeding that is not and effect as between Agency and Active and are superseded by this
ad within thirty(30)days. Agreement. In any action or sun to enforce any right or remedy under
arran ies. Each party represents and this Agreement or to interpret any provision of this Agreement, the
warrants that it has the necessary and full right, power, authority and prevailing party shall be entitled to recover its Costs, including
capability to enter into this Agreement and to perform its obligations reasonable attorneys' fees. Sections 2, 7, 9, 11 12 and 13 of this
hereunder, that it owns or controls the rights granted or licensed to the Agreement shall survive any termination or expiration of this
other party herein; that the execution and performance of Its Agreement. If one or more of the provisions of this Agreement for any
obligations under this Agreement will not violate any known rights of reason shall be held to be invalid, illegal or unenforceable in any
any third party, any contractual commitments or any applicable federal, respect, such invalidity, illegality or unenforceability shall not affect any
state and local law or regulation; and that to its knowledge the marks, other provision of this Agreement and this Agreement shall be
logos and intellectual property licensed to the other party herein do not construed as if such invalid, illegal or unenforceable provisions had
violate the proprietary rights of a third party. never been contained in this Agreement. Neither this Agreement nor
10. Exclusivity. Active will be the sole and exclusive provider of the any attachment may be modified or amended except by the mutual
Products and Services for the term of this Agreement. You further written agreement of the parties. No waiver of any provision of this
grant Active a right of first refusal to match or better any offer of similar Agreement or any attachment shall be effective unless it is in writing
products or services as provided by Active hereunder and if Active and signed by the party against which it is sought to be enforced.
elects to exercise such option, you agree to procure such products or Neither party win be deemed to be in default hereunder,or will be liable to
services from Active. You agree to promote Active as the preferred the other,for failure to perform any of its obligations under this Agreement
and organexclusiveization. provider of the Products and Services for your for any period and to the extent that such failure results from any event or
circumstance beyond that party's reasonable control, including ads or
11. Indemnification. Each party shall indemnify and hold harmless omissions of the other party or third parties, natural disasters, riots, war,
the other party and its directors, officers, employees, affiliates and civil disorder, court orders, ads or regulations of governmental bodies,
agents, against any third party claim,demand, cause of action, debt or labor disputes or failures or fluctuations in electrical power, heat, light, air
proceedings (whether threatened, asserted, or filed) and all related conditioning or telecommunications equipment or Ines. or other
damages, losses, liabilities, cost and expenses (including reasonable equipment failure,
attorneys'fees), to the extent that: (i)it is based upon the indemnnor's ACTIVE
breach of a representation, warranty or obligation hereunder, (if) It
arises out of the indemnnor's gross negligence or willful misconduct;or By:
(iii)it is based upon the indemnitor's violation of any applicable federal,
state or local law or regulation. You shall further indemnify and hold
harmless Active against any claim or cause of action to the extent that Date:
it is based on injury or death to a person or damage to property
resulting from the participation in an event or activity operated by you PALM SPRINGS�PiY N
In Connection with the Products and/or Services.
12. Dispute Resolution. The parties shall attempt in good faith to
resolve any dispute arising out of or relating to this Agreement by ✓l
negotiation between executives who have authority to settle the (Full Legal Name) E- ail
dispute. Any party may give'the other party written notice of any
dispute not resolved in the normal course of business. Within ten (10) By �r
business days after delivery of the notice, the receiving party shall (Sgnatu (kAgft
submit to the other a written response. The notice and the response Address y{',T
shall include (I)a statement of each party's position and a summary of CiJ/�/�l'✓i/ c"1� 7
arguments supporting that position, and (ii) the name and tine of the T r
executive who will represent that party and of any other person who will Print Name and Tine City, Statb and
accompany the executive. Within five(5) business days after delivery
of the disputing party's notice, the executives of both parties shall meet
at a mutually acceptable time and place, and thereafter as often as Checks payab to Event URL(Web site)
they reasonably deem necessary, to attempt to resolve the dispute. All
reasonable requests for information made by one party to the other will Dateelf�! /
be honored. The foregoing procedure shall not apply to either pany'a be Ph:
attempt to obtain provisional equitable relief in the form of an injunction
or specific performance.
13. Miscellaneous. Any notices shall be in writing by tax or airmail. `
This Agreement is non-assignable without the consent. of the other
party, except that Active may without consent assign: (i) its rights to /J�r/✓L ` n /b�/
C —o
2 04
EXHIBIT A
The Active Network Quote#:2448-1
10182 Telesis Court, Pricing Form Date:01/252010
1st floor
San Diego, CA, 92121, Expires: 04252010
United States
Customer: Address: Bill To: Ship To:
Vicki Oltean PALM SPRINGS PARKS& PALM SPRINGS PARKS&
PALM SPRINGS PARKS& RECREATION RECREATION
RECREATION 401 S. Pavilion Way 401 S. Pavilion Way
PALM SPRINGS,RIVERSIDE PALM SPRINGS,RIVERSIDE PALM SPRINGS,RIVERSIDE
CA 92262 CA 92262
US United States
Sales Representative: Payment Terms:30 Net
Line Product Units Qty Unit Price Unft Price Unit Price Total Total Total Price Total
List Ad). Selling Price List Price Ad). Selling Charges
(USD) (USD) (USD) (USD) (USD) (USD) (USD)
1.0 70179 Ea 1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2.0 70181 Ea 1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
ActiveNet-Facility Reservation
3.0 70183 Ea 1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
ActiveNet-Membership
4.0 70186 Ea 1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
ActiveNet-Public Access
Category Subtotal
ActiveNet.SaaS.Online Transactions Subtotal(Selling Price) 0.00
Tax
COUNTY(Rate 1.5%) 0.00
STATE (Rate 7.25%) 0.00
Total(USD) Included 0.00
Additional Information
Customer shoe pay TAN all fees for Ikensed software Purchased hereunder upon delivery of the software.
Delivery of licensed software shall be deemed to have occurred upon TAN's email transmission to customers designee of an FTP link permitting downbad of the softwarefrom TAW designated online site,or where derrvered in are form of physical media.FOB origin.
The start date for seppot<@nd_malntenartce for implemenlationaperformed,bY_TMVj.be_the firstdayr,pfimpementatl of the,lioenaed s9rimm w,90 days to0gwing the
3 ��
delivery of the licensed software,whichever occurs first and upon delivery of the licensed eoltware%or Implementations performed by customer or a third party vendor.
♦ ti.
Sales taxes,where applicable,are not Included and prices are in are Currency of the country of Installation(subject to Change without notice).
Hardware,operating system,9rd party software and site preparation am not included unless otherwlee noted.
On-site services are exclusive of airfare. j
:
The software and manuals are avallable for download.
Onefte services billed in mtMmum B hour daey Increments. �
i
AN hardware sales are final. Hardware is covered by standard manufactureh warranty.Equipment that is defective upon shiver wit[be replaced.RMA process wa apply i
Ion Items after support has Indicated them am no anematives.
Customer must nosy TAN in writing of any defective hardware within 7 days of its receipt Any notion recelved after 7 days Concerning defective hardware We be null and
void and will not be accepted for return or replacement by TAN.
i
Onaoina Fees I
Transactions entered directly by participants through the Webske will be assessed the customary service fee Charged by Active to online registrants
('Service Charger,as described below. Transactions entered by a member of the Agency on behalf of a participant will be assessed a Service
Charge equal to 1.5%for cash or check,and 3.75%for credit card transactions. Each online registrant will pay the event registration The charged by
Agency plus a Service Charge equal to 6.5%of the registration fee plus$.50;with a minimum Service Charge of$2.00. If the registration fee is
l between$150-M.the Service Charge will be 3.5%plus$5.00,and for fees above$500,the Service Charge will be 2.5%plus$10.00. We may
change the Service Charge at any time and you agree to such change unless you provide us with written objection to such change within 30 days
from the date such change Is fast Implemented. We will be responsible for collecting all registration fees charged by you and all Service Charges j
assessed by us. All registration fees,except Service Charges,are your exclusive property. Any registration fees coikicied by us will be sent to you i
Woe a month and Service Charges shall be retained by us. You shall guarantee and pay to Active a minimum aggregate Service Charge,whether i
through of Rine or online transactions,of$750 per calendar quarter(the'Minimum Quarterly Service Charge"). You shall pay to Adhm the difference
between such Minimum Quarterly Service Charge and the actual Service Charges collected by us during such quarter,which will be billed at the end
of each quarter beginning from the date set forth below. Active shall not be responsible for processing or making any refunds. All credit card j
refunds processed will be assessed a$.10 fee charged by Active to you. Active may reimburse itself for any credit card charge backs and associated
fees out of registration fees collected by it. In the event such birds are not available,you agree to reimburse Active for any charge backs or refunds.
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PALM SPRINGS r Lf 'W .CF'
Sign uai fe MA OYE BY CITY COUNCIL
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i Effective Date
End of Quote
4 06
PRODUCTS AND SERVICES AGREEMENT
CONTRACT#00021334.
�I,IIiNT tNpT11eMA't'tON -
ORGANIZATION FULL City of Pam Springs ', ADDRESS: 401 S.Pavilion Way
LEGAL NAME: PALM SPRINGS,CA 92262
USA
CONTACT NAME: Vickie Oltean TELEPHONE: 1 (760)323-8272
EMAIL: vicki.oltmn@palmsprings- FAX:
ca_gov
EFFECTIVE DATE April 1,2014
OVExv1Ew OF A'GREHNEN'I'
This document("Agreement')consists of this cover page,the attached terns applicable to all Products and
Services,and the following Schedules and Exhibits(check all.applicable Appendices)
Appendix 1: Uosted Software
Appendix 2: Licensed Software;Support and Maintenance] Appendix 3: Third Party Products
j Schedule -
® Exhibit A: Maintenance Fxhibit
NOTE: If Client is tax exempt,certificate must be provided alone with signed contract.
In consideration of the mutual promises and covenants contained in this Agreement,Client and Active hereby
agree to be bound by this Agreement. By signing below, Client acknowledges and confirms that it has read
this Agreement.
� CuENT t 'TC�IEACTtYEVETw+D$r�SNcS�"ACTIVE").
Signature: �� ignamre:
Name: pQV�� -� Name:
Title: C l Title:
Date: Date:
The Active Network,Inc.,10182 Telesis Court,San Diego,California 92121
Telephone:(858)964-3801,Fax:(858)964-3978
Last revised November 7,2013
1
982136.1 ATTEST: . APPROVED BY CR MANAGER
ity Clerk 07