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c'44-F0f9t CITY COUNCIL STAFF REPORT
DATE: July 21, 2010 CONSENT CALENDAR
SUBJECT: APPROVAL OF 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 P party web based
registration system in 2006 that is hosted by The Active Network, Inc. for the purposes
of the programs, facility rentals and events that are conducted at the City's Park and
Recreation location. The system has been successfully operating and maintained and it
is time to enter into a new maintenance agreement for the next three (3) year period.
RECOMMENDATION:
1. Approving a software maintenance and usage agreement in a form acceptable to
the City Attorney for a three (3) year term with The Active Network, Inc. for their
web based registration, facility rentals, etc. proprietary system in an amount not
to exceed $43,200.
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
In 2006 the City entered into an agreement with The Active Network, Inc. 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. As the
amount of usage of the system determines the amount of the annual fee, it is not a
"fixes" annual cost. As a result, the Parks and Recreation Department has reviewed the
records of the last three (3) years to estimate the amount of usage and anticipates that
the annual cost at approximately $14,400 for a total three (3) year term not-to-exceed
$43,400.
IT&v, NO.
City Council Staff Report
July 21, 2010 -- Page 2
Annual Software Maintenance
FISCAL IMPACT:
This is a budgeted expense and funds are allocated each year in the City's Recreation
budget, account#001-2510-42920, PC/Hardware & Software Maintenance.
VICKI OLTEAN THOMAS WILS ,
Director, Parks & Recreation Assistant City Manager
DAVID H. READY, City r
FWD
Attachments:
1. Hosted Global Services Agreement
Hosted Software License&Services Agreement airmail upon request. You will be responsible for protecting the privacy
This Hosted Software License & Services Agreement("Agreement") is and security of any information that you retrieve from our servers and
made effective as of the last date set forth below("Effective Date")and shall prevent any unauthorized or illegal use or dissemination of such
entered into between The Active Network, Inc., 10182 Telesis Court, information. All information collected by Active shall be jointly owned
San Diego, CA 92121 ("Active" or"we" or"us")and PALM SPRINGS by Active and you.
PARKS & RECREATION ("you" or "your" or "Agency"). Active 4. Privacy. Each party shall comply with all applicable laws,
agrees to provide you the Services (as defined below) subject to the regulations and guidelines governing online privacy, including Active's
following terms and conditions: privacy policy as published on its website, in fulfilling its obligations
1. Services. Active will provide you with access to certain of its hereunder and in collecting and using personal information about users
hosted software products ("Products") as well as applicable related of the hosted website.
services and support("Services") as are more particularly described in 5. Fees.
Exhibit A attached hereto, which identifies functionality, features, a) Active shall collect registration fees charged by you for
options and fees related to the Products and Services you have individuals that register for your activities and events online through the
elected to receive. To assist us in the delivery of the Products and hosted website and remit to you those sums to you bi-monthly unless
Services, you agree to provide us with certain information requested by otherwise indicated in Exhibit A, less Active's service fees provided as
us relating to your organization. Any and all software or hardware consideration for the Products and Services as set forth in Exhibit A.
specified in Exhibit A and provided under this Agreement as part of the All fees due to Active as consideration for its delivered Products and
Products are deemed delivered F.O.B. origin, which for software will Services are non-refundable. All registrations are calculated on a per
typically be an Active provided downloadable FTP link. single registrant per single event basis. If you have agreed to a
2. License to Intellectual Property/Promotion. minimum volume commitment in Exhibit A, Active also has the right to
a) Active shall retain all right, title and interest in and to its charge fees owed to it by you if your organization is not meeting its
Products and any underlying software, patents, copyrights, trademarks, agreed volume commitments throughout each year and may collect
service marks, logos and trade names worldwide ("Intellectual those funds via invoice, or directly by netting them from any account
Property") subject to the limited license provided by this Agreement. balance you maintain with Active. Active may also reimburse itself for
You shall use the Intellectual Property only as provided, and shall not any credit card charge backs or overdue fees owed by you out of the
alter the Intellectual Property in any way, or act or permit action in any registration fees it collects on your behalf and/or by debiting your
way that would impair Active's rights in its Intellectual Property. You account. All fees and prices listed on Exhibit A are in US Dollars
acknowledge that your use of the Intellectual Property shall not create unless otherwise specified. The prices listed are for the current version
in you or any other person any right, title or interest in or to such of the Products and include improvements and enhancements to the
Intellectual Property. Any goodwill accruing from the use of the delivered version of the Products provided under this Agreement as
Intellectual Property shall inure solely to the benefit of Active. available and provided you have maintained a current agreement with
b) Active hereby grants to you a limited, non-exclusive, non- Active.
transferable license (i) to use the Products solely in accordance with b) Products and Services prices may change for any new Products
Active's specifications, and (ii) to display, reproduce, distribute and and Services as well as significant upgrades and updates that are not
transmit in digital form Active's name and logo in connection with deemed by Active as supported version enhancements. Prices may be
promotion of the Products and/or Services as communicated to you by increased up to 5% annually to cover cost increases such as inflation
Active. You hereby grant to Active a limited non-transferable license and cast-of-living.
to use, display, reproduce, distribute, modify and transmit in digital or C) Unless you provide Active with a valid and applicable exemption
printed form information provided by you relating to your organization, certificate for your Agency, you will be solely responsible for, and will
which may include your organization's name, trademarks, service pay, any and all use, excise, sales or privilege taxes, duties, value
marks and logo, in connection with the implementation and promotion added taxes, fees, assessments or similar liabilities however
of the Services for you and the promotion of your organization for your denominated chargeable by a governmental authority as a result of any
benefit. service or deliverable provided under this Agreement, exclusive of
C) You will make reasonable efforts to promote and encourage taxes on Active's net income.
adoption of the Services and the availability of online registration, d) In the event you are entering into this Agreement and seeking
which may include displaying Active's name and logo in any the Services for the benefit of a third-party event or organization ("Third
newsletters, printed registration forms or mailings provided by you to Party Beneficiary"), you agree as follows: (i)we may send registration
prospective participants (e.g. by inserting the following statement in fees collected by us directly to the Third Party Beneficiary, and (ii) you
any online or print media related to your event or activity: "Online shall indemnify us for any claims, loss or expenses (including
Registration Powered by Active.com"). attorney's fees) brought by the Third Party Beneficiary that relate to or
d) Agency elects to receive notifications of free product, arise from your negligence, wrongdoing or lack of authority to act on
promotional items and giveaways through the Active program known behalf of such third party.
as ActiveRewards. Active will offer the Agency (and for the purposes 6. Support and Service Fees. Applicable support, training and
of clarification not to your users) opportunities for free product, professional services fees are more specifically described in Exhibit A.
promotional items and giveaways at your event(s) or facility(ies) as All Fees set forth in this Agreement and in Exhibit A that are not
applicable,the exact manner and type of which will be mutually agreed directly collected by Active as part of the registration fees will be due
upon by you and Active upon your acceptance of a particular program. from you within 30 days of invoice date. Any Fees rendered later than
e) Agency understands that some of Active products may contain this deadline shall accrue interest at the annual rate of 10% per
Active or third party promotions or offers to users and such offers will annum. In the event of delay in paying a Fee, you shall reimburse
be made to individuals on an opt-in basis. Active (and any such third Active for any legal fees incurred by Active in its collection efforts.
party) shall be responsible for administration and customer service Active, at its option, may debit from your account any overdue amounts
issues on any such offer or promotion, owed by you to Active from funds collected by Active on your behalf.
3. Information Security. Active collects certain information, 7. Disclaimer of Warranty/Limitation of Liability. OTHER THAN AS
including names, addresses, credit card information and other CONTAINED IN THIS AGREEMENT, ACTIVE EXPRESSLY DISCLAIMS ANY
information required by you and for the delivery of the Products and WARRANTY THAT THE USE OF ITS PRODUCTS OR SERVICES WILL BE
Services, from individuals registering for your event or activity through UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL
the hosted website(s). Such information shall be stored on a secure MEET YOUR REQUIREMENTS. ALL PRODUCTS AND SERVICES OF ACTIVE
remote server. You may access this information at any time by ARE PROVIDED TO YOU ON AN "AS-IS" BASIS WITHOUT WARRANTIES OF
downloading it from Our servers using your private password and ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
"login" identifier. If you are unable to access your registrants' WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
information through the event director portion of the hosted website, PURPOSE. ACTIVE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL,
Active WIII make available such information to you via e-mail, fax or CONSEQUENTIAL, OR LOST PROFIT DAMAGES. ACTIVE'S TOTAL LIABILITY
FOR ANY MATTER ARISING FROM OR RELATED TO THIS AGREEMENT IS
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LIMITED TO THE AMOUNT OF FEES ACTUALLY RECEIVED FROM YOU AS receive payments; or(ii)the Agreement in connection with any sale of
CONSIDERATION FOR THE PRODUCTS AND SERVICES PROVIDED or any other transaction involving the transfer of more than fifty percent
HEREUNDER. of its voting securities or assets. This Agreement shall be governed by
8. Term and Termination. Unless expressly provided to the the laws of the State of California. Any legal action or proceeding
contrary in Exhibit A attached hereto, the term of this Agreement shall relating to this Agreement shall be instituted only in any state or federal
be for 3 years from the Go-Live Date of the Hosted Software, with court in San Diego County, California. This Agreement contains the
automatic renewals for 3 year terms thereafter (each a "Renewal entire understanding of the parties regarding the subject matter and
Term") until either party gives written notice to terminate this can only be modified by a subsequent written agreement executed by
Agreement no less than 12 calendar months prior to the both parties. Any 'click-wrap' agreement, terms of use, electronic
commencement of a Renewal Term. Either party may terminate this acceptance or other terms and conditions which attempt to govern the
Agreement: (a) upon a material breach by the other party if such subject matter of this Agreement that you might be required to
breach is not cured within thirty(30)days following written notice to the acknowledge or accept before using an Active product are of no force
breaching party; or (b) where the other party is subject to a filed and effect as between Agency and Active and are superseded by this
bankruptcy petition or formal insolvency proceeding that is not Agreement. In any action or suit to enforce any right or remedy under
dismissed within thirty(30)days. this Agreement or to interpret any provision of this Agreement, the
9. Representations and Warranties. Each party represents and prevailing party shall be entitled to recover its costs, including
warrants that it has the necessary and full right, power, authority and reasonable attorneys' fees. Sections 2, 7, 9, 11 12 and 13 of this
capability to enter into this Agreement and to perform its obligations Agreement shall survive any termination or expiration of this
hereunder; that it owns or controls the rights granted or licensed to the Agreement. If one or more of the provisions of this Agreement for any
other party herein; that the execution and performance of its reason shall be held to be invalid, illegal or unenforceable in any
obligations under this Agreement will not violate any known rights of respect, such invalidity, illegality or unenforceability shall not affect any
any third party, any contractual commitments or any applicable federal, other provision of this Agreement and this Agreement shall be
state and local law or regulation; and that to its knowledge the marks, construed as if such invalid, illegal or unenforceable provisions had
logos and intellectual property licensed to the other party herein do not never been contained in this Agreement. Neither this Agreement nor
violate the proprietary rights of a third party. any attachment may be modified or amended except by the mutual
10. Exclusivity. Active will be the sole and exclusive provider of the written agreement of the parties. No waiver of any provision of this
Products and Services for the term of this Agreement. You further Agreement or any attachment shall be effective unless it is in writing
grant Active a right of first refusal to match or better any offer of similar and signed by the party against which it is sought to be enforced.
products or services as provided by Active hereunder and if Active Neither party will be deemed to be in default hereunder, or will be liable to
elects to exercise such option, you agree to procure such products or the other, for failure to perform any of its obligations under this Agreement
services from Active. You agree to promote Active as the preferred for any period and to the extent that such failure results from any event or
and exclusive provider of the Products and Services for your circumstance beyond that party's reasonable control, including acts or
organization. omissions of the other party or third parties, natural disasters, riots, war,
11. Indemnification. Each party shall indemnify and hold harmless civil disorder, court orders, acts or regulations of governmental bodies,
the other party and its directors, officers, employees, affiliates and labor disputes or failures or fluctuations in electrical power, heat, light, air
agents, against any third party claim, demand, cause of action, debt or conditioning or telecommunications equipment or lines, or other
proceedings (whether threatened, asserted, or filed) and all related equipment failure,
damages, losses, liabilities, cost and expenses (including reasonable ACTIVE
attorneys' fees),to the extent that: (i) it is based upon the indemnitor's
breach of a representation, warranty or obligation hereunder; (ii) it By:
arises out of the indemnitor's gross negligence or willful misconduct; or
(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 Date:
harmless Active against any claim or cause of action to the extent that
it is based on injury or death to a person or damage to property PALM SPRINGS PARKS& RECREATION
resulting from the participation in an event or activity operated by you
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 (Full Legal Name) E-Mail
negotiation between executives who have authority to settle the
dispute. Any party may give the other party written notice of any By:
dispute not resolved in the normal course of business. Within ten (10) (Signature)
business days after delivery of the notice, the receiving party shall Address
submit to the other a written response. The notice and the response
shall include (i) a statement of each party's position and a summary of
arguments supporting that position, and (ii) the name and title of the Print Name and Title City, State and Zip
executive who will represent that party and of any other person who will
accompany the executive. Within five (5) business days after delivery
of the disputing party's notice, the executives of both parties shall meet Checks payable to Event URL(Web site)
at a mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary, to attempt to resolve the dispute. All Date: Daytime Ph:
reasonable requests for information made by one party to the other will
be honored. The foregoing procedure shall not apply to either party's
attempt to obtain provisional equitable relief in the form of an injunction
or specific performance.
13. Miscellaneous. Any notices shall be in writing by fax 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
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EXHIBIT A
The Active Network Pricing F Quote#: 2448-1
rcn Form 10182 Telesis Court, Date: 01/25/2010
1 st floor Expires:04/25/2010
San Diego, CA, 92121,
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 Unit Price Unit Price Total Total Total Price Total
List Adj. Selling Price List Price Adj. 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
ActiveNet-Activity Registration
2.0 70181 Ea 1 0.00 0.00 0.00 0.00 OAO 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) 0.00
.. ......................................... ....
Additional Information
Customer shall pay TAN all fees for licensed software purchased hereunder upon delivery of the software.
Delivery of licensed software shall be deemed to have occurred upon TAN's email transmission to customer's designee of an FTP link permitting download of the software
from TANS designated online site,or where delivered in the form of physical media,FOB Origin.
The start date for support and maintenance for implementations performed by TAN will be the first day of implementation of the licensed software or 90 days following the
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delivery of the licensed software,whichever occurs first,and upon delivery of the licensed software for implementations performed by customer or a third party vendor.
Sales taxes,where applicable,are not included and prices are in the currency of the country of installation(subject to change without notice).
Hardware,operating system,3rd party software and site preparation are not included unless otherwise noted.
On-site services are exclusive of airfare.
The software and manuals are available for download.
Onsite services billed in minimum 8 hour daily increments.
All hardware sales are final. Hardware is covered by standard manufacturer's warranty.Equipment that is defective upon arrival will be replaced.RMA process will apply
for items after support has indicated there are no alternatives.
Customer must notify TAN in writing of any defective hardware within 7 days of its receipt.Any notices received after 7 days concerning defective hardware will be null and
void and will not be accepted for return or replacement by TAN.
Ongoing Fees
Transactions entered directly by participants through the Website will be assessed the customary service fee charged by Active to online registrants
("Service Charge"), 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 fee 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
between$1504500,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 first implemented. We will be responsible for collecting all registration fees charged by you and all Service Charges
assessed by us. All registration fees,except Service Charges,are your exclusive property. Any registration fees collected by us will be sent to you
twice a month and Service Charges shall be retained by us. You shall guarantee and pay to Active a minimum aggregate Service Charge,whether
through offline or online transactions,of$750 per calendar quarter(the"Minimum Quarterly Service Charge"). You shall pay to Active the difference
between such Minimum Quarterly Service Charge and the actual Service Charges collected by us during such quarter,which will be billed at the end
of each quarter beginning from the date set forth below. Active shall not be responsible for processing or making any refunds. All credit card
refunds processed will be assessed a$.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 funds are not available,you agree to reimburse Active for any charge backs or refunds.
Method of Payment
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'IV'Ss t1asty ward ^Yer Exo ass
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hereb'y,Ag-r to oBy t+e sb va quota t .t1 tie stated -wathod.
PALM SPRINGS PARKS& RECREATION
Signature
Name
Title
Effective Date
End of Quote
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