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HomeMy WebLinkAbout17 - Purchase PDSI Telestaff SoftwareCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 17 September 28, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Fire Department Tim Riley, 644 -3101, triley @city.newport- beach.ca.us SUBJECT: Approve Purchase of PDSI Telestaff Software ISSUE: The internally authored computer software that has been used over the past decade by fire suppression personnel to schedule, assign and track shift rosters is failing and obsolete. The department researched commercially available software solutions and determined that Telestaffsoftware performs these functions and provides several enhancements over the current software. RECOMMENDATION: Approve the purchase of PDSI Telestaffsoftware for a total not to exceed $93,870. (Contract price of $85,338 + 10% contingency) DISCUSSION: Current Situation: Over the past decade, the Fire Department has used an internally developed software program, to schedule, track, and assign fire suppression personnel to the daily shift roster. This "rostering" program allows personnel to update their schedules via the department's computer network. It allows them to request vacation days and highlight schedule conflicts. It also allows the personnel to apply for and be assigned overtime shifts in accordance with City policies and MOU. This provides a constant update for fire management regarding the staff availability of upcoming work days ensuring adequate staffing. On a bi- weekly basis, the roster data base is uploaded to the City's payroll system to provide an accurate accounting of staffing and hours worked. The program was written in Microsoft Access 2.0 in 1994 and updated in Microsoft Access 2000 several years ago. The individual who wrote and understood the program retired in 2001. Since that time, it has become increasingly unstable and difficult to Approve Purchase of PDSI Telestaff Software September 28, 2004 Page 2 maintain the program. Additionally, Lifeguard division and office personnel of the Fire Department each use different methods to provide timecard information to the City's payroll system. Proposed Solution: The Fire Department researched commercially available, off- the -shelf staffing software that performs the scheduling and tracking functions of our current software. Of the four software packages examined, none had the comprehensive features and enhancements as compared to Telestaff software by PDSI. It is written in a 4GL relational database language that allows interface with our SUNPRO Incident Reporting System and the City's Pentamation accounting system. Besides duplicating the functions of the existing software, Telestaff provides the following enhancements over the current system: • Provides a significantly simplified method for the lifeguard division to schedule, assign and account for staffing schedules, identical to the fire suppression division. • Allows for department personnel to be notified of work schedule changes, request leave, volunteer for overtime assignments and review future and past work schedules via city computers, via the internet, or via telephone. • Allows management to review staffing schedules, change staffing levels, notify employees of work schedule changes, and monitor staffing patterns on a real - time basis. • Allows supervisors to automatically notify employees telephonically of schedule changes and overtime opportunities. • Allows employees to receive telephonic notifications of shift changes and accept work opportunities. • Provides a historical record of day -to -day staffing data as opposed to bulk labor hour accumulations of employees. • Provides a data interface with Pentamation, the City's accounting software. • Provides a data interface with SUNPRO, the Fire Department's Resource /Incident Management System. • Provides the same methodology and process for all fire department personnel. • Provides an automatic notification and acknowledgement system for key City and EOC personnel in case of emergencies. Telestaff is installed in over 400 Fire and Police Departments across the country, including Costa Mesa, City of Orange and Orange County Fire Authority. Their corporate headquarters are located in Irvine. Funding Availability: $95,000 was included in this year's budget to fund this project. Approve Purchase of PDSI Telestaff Software September 28, 2004 Page 3 Alternatives: 1. There is no other software that provides the functionality, system integration and added features as Telestaff. Acceptance of one of these packages would result in loss of current functionality and would require workarounds or manual intervention. 2. Hire a software programmer or use limited in -house City MIS resources to write a program to maintain or rewrite the currently existing software. 3. Band -aid the existing Access program until it fails. At that time, resort to manual timecard information and have management supervisors use manual methods to maintain staffing schedules, assign overtime, and capture time and attendance for payroll. Prepared by: Wz � zol 6,11 iaszewski Fire Support Services Manager Submitted by: Tim Riley Fire Chief Attachments: Telestaff License and Annual Service Agreement /Z , TELESTAFF LICENSE AND ANNUAL SERVICE AGREEMENT This Agreement ( "AGREEMENT') is made and entered into this day of 20 , by and between PRINICIPAL DECISION SYSTEMS ( "PDSI "), a corporation ( ?) that has its principal place of business at 625 The City Drive South, Suite 190, Orange, CA 92868, and CITY OF NEWPORT BEACH ( "CUSTOMER "), a Municipal Corporation that has its principal place of business at 3300 Newport Boulevard, Newport Beach,_ California, 92658, and shall be subject to the following terms and conditions: WHEREAS, PDSI has developed a telecommunications /computer technology which consists of certain software known as TELESTAFF; and WHEREAS, PDSI imposes certain license requirements on customers desirous of purchasing a license for TELESTAFF; and WHEREAS, CUSTOMER wishes to contract with PDSI to: (1) implement a license to use TELESTAFF, (2) train CUSTOMER on its configuration and use, and (3) as applicable, implement all licenses necessary to use TELESTAFF; and WHEREAS,. PDSI is willing to contract with CUSTOMER to: (1) grant CUSTOMER a license to use TELESTAFF, (2) train CUSTOMER on its configuration and use, and (3) as applicable, grant all licenses necessary to use TELESTAFF; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, PDSI and CUSTOMER do hereby agree as follows: 1. OWNERSHIP AND LICENSE OF TELESTAFF: Except as provided herein at paragraph 2(b), PDSI hereby grants to CUSTOMER a license to use TELESTAFF in object code form. CUSTOMER shall abide by the terms and conditions of this license as stated herein. The parties recognize and acknowledge that ownership of TELESTAFF shall remain with PDSI. CUSTOMER may make and maintain four (4) backup or archival copies of TELESTAFF. All copies of TELESTAFF shall be subject to the terms and conditions of this Agreement. CUSTOMER may copy the documentation for internal training purposes, or to embed in other internal documentation. All titles, trademarks, copyright or other proprietary notices of PDSI shall be reproduced on all copies of TELESTAFF and documentation. 2. COPYRIGHT AND PROPRIETARY PROTECTION: (a) TELESTAFF is owned by PDSI, and is protected by United States and international copyright laws and international trade provisions. CUSTOMER must treat TELESTAFF like any other copyrighted material. This License and CUSTOMER's right to use TELESTAFF shall terminate automatically if CUSTOMER violates any part of this AGREEMENT. In the event of termination for any reason other than non - renewal of Service and Support as described herein at paragraph 10, CUSTOMER must immediately return TELESTAFF and accompanying documentation to PDSI. (b) CUSTOMER shall not: (i) Modify TELESTAFF and /or merge it into another program for CUSTOMER use except by express, written permission from PDSI. Any portion of TELESTAFF merged into another program following the express, written permission from PDSI will be subject to the terms of this AGREEMENT; (ii) Reverse engineer, disassemble, decompile, or make any attempt to discover the source code or methodology of TELESTAFF. 3. EXECUTION DATE: The Execution Date is defined as the date this AGREEMENT is signed by an authorized agent of CUSTOMER. 4. TERM AND TERMINATION: (a) Effective Date. This AGREEMENT and the license granted herein shall take effect upon the date of execution as defined in paragraph 3 herein. (b) Term and Renewal. The AGREEMENT shall remain in effect for a term of one (1) year from the Effective Date, unless terminated as provided herein in paragraph 4, section (c). Upon the one -year anniversary of the date of execution, this AGREEMENT shall automatically renew for a period of ninety (90) days, unless thirty (30) days written notice of cancellation upon expiration of the one -year term has been provided by CUSTOMER. Upon the expiration of each ninety (90) day period thereafter, this AGREEMENT shall renew for a further ninety (90) day period unless terminated as provided in paragraph 4, section (c). (c) Termination. This AGREEMENT shall terminate upon the following events: (i) After the initial one -year term of the AGREEMENT, upon at least thirty (30) days written notice to the other party prior to the expiration of that current ninety (90) day term. (ii) In the case of an event of default (if CUSTOMER or PDSI fails to satisfy any of its respective covenants, duties or obligations under this AGREEMENT), the non - defaulting party shall have the option to terminate this AGREEMENT. In the event of default, the non - defaulting party shall give written notice to the defaulting party of the alleged default and give such party at least thirty (30) days in which to cure the alleged default. If the defaulting party does not satisfactorily cure its default, the non - defaulting party has the right to terminate upon thirty (30) days additional written notice stating the defaulting party's failure to cure the default; (iii) By mutual consent between both parties; (iv) Pursuant to the provisions of paragraph 12 (a)(ii) — Termination after failure of acceptance tests; or (v) Parties may terminate this agreement, upon notice to the other party, in the event that the non - terminating party becomes insolvent, files a petition in bankruptcy or has such petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective), has a receiver appointed with respect to all or substantially all of its assets, makes an assignment for the benefit of creditors, or ceases to do business in the ordinary course. All rights and licenses to TELESTAFF software and WEBSTAFF granted under or pursuant to this Agreement by PDSI to CUSTOMER are, and shall otherwise be deemed to be, for purposes of Section 365 (n) of the United States Bankruptcy Code (11 U.S.C.A. 365(n)) ( "Code ") licenses for rights to "intellectual property" as defined under the Code. The parties hereto agree that CUSTOMER, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code. The parties further agree that, in the event of commencement of bankruptcy proceedings by or against PDSI under the Code, CUSTOMER shall be entitled to retain all its rights under this Agreement if it chooses not to terminate. 5. PRODUCT OPTIONS: The following constitutes a list of TELESTAFF components and associated fees that CUSTOMER does hereby agree to purchase from PDSI available in connection with the use of TELESTAFF. See Appendix A for the definition of TELESTAFF Hardware Components and Appendix B for the definition of Implementation Services. Total Initial Acquisition Cost $ 85,338 6. PRICING: PDSI agrees to the fees reflected above in paragraph 5 until September 30. 2004. 7. PAYMENTS: CUSTOMER agrees that all pricing and amounts due hereunder are based on United States currency and that all amounts remaining unpaid for more than thirty (30) days following the date of the invoice shall be subject to an interest charge at the monthly rate of 1.5 %. CUSTOMER does hereby agree to the payment terms for each component. Initial Component Fee TELESTAFF Software License for $ 49,000 350 Staff Members consisting of 155 fire and 195 lifeguards TELESTAFF RECALL ONLY 75 $ 3,750 Staff Members Sales Tax at 7.75% on $ 4,088 TELESTAFF Software License WEBSTAFF - PDSI Hosted Setup $ 2,500 and First Year Service TELESTAFF Implementation $ 19,500 Services including 2 separate configuration trainings one for Fire and one for Lifeguards 12 concurrent Sybase $ 1,500 connections TeleStaff Gateway Qty: 1 to $ 5,000 Sunpro Total Initial Acquisition Cost $ 85,338 6. PRICING: PDSI agrees to the fees reflected above in paragraph 5 until September 30. 2004. 7. PAYMENTS: CUSTOMER agrees that all pricing and amounts due hereunder are based on United States currency and that all amounts remaining unpaid for more than thirty (30) days following the date of the invoice shall be subject to an interest charge at the monthly rate of 1.5 %. CUSTOMER does hereby agree to the payment terms for each component. A 10. Component TELESTAFF Software License and applicable Sales Tax WEBSTAFF Setup and First Year Service TELESTAFF Implementation Services Sybase SQL Anywhere Database TRAVEL EXPENSES: Due (under negotiation) Net 90 Days from Execution Date 50% upon Execution Date and remaining 50% upon completion of the Configuration Phase as defined in Appendix B attached hereto Upon Delivery CUSTOMER agrees to pay for all travel expenses related to TELESTAFF implementation and training services as defined in Appendix B. IMPLEMENTATION SERVICES: Implementation Services include configuration of TELESTAFF as defined in Appendix B. CUSTOMER acknowledges that additional training and /or reconfiguration requested by CUSTOMER will be at an additional cost. ANNUAL SERVICE AND SUPPORT: Service and Support of TELESTAFF is provided at no additional charge during the first twelve (12) months following the Execution Date. See Appendix C for the definition of Service and Support. CUSTOMER does hereby acknowledge that on each anniversary of the Execution Date, CUSTOMER may renew service and support under the following events: Initial Event Payment TELESTAFF - 1st Anniversary $ 7,106 of the Execution Date Subsequent anniversaries during term Should CUSTOMER elect not to renew Service and Support on the anniversary of any Execution Date, CUSTOMER acknowledges that any 11 subsequent re- enrollment for Service and Support will only be accepted by PDSI after CUSTOMER cures the previous lapse in Service and Support by paying PDSI the Service and Support fee for the lapsed periods. PDSI reserves the right to discontinue Service and Support of previous releases of TELESTAFF and WEBSTAFF as defined in Appendix C. WEB STAFF USAGE: Access to TELESTAFF via the web is provided through the WEBSTAFF application hosted by PDSI. CUSTOMER does hereby acknowledge that on each event and for the fee specified below, CUSTOMER can renew access to WEBSTAFF: Initial Event 1 st Anniversary of the Execution Date Subsequent anniversaries during term Payment $ 6,300 5% maximum increase over previous period Should CUSTOMER elect not to renew WEBSTAFF access or fail to pay the usage fee specified above in advance of the subsequent twelve (12) month period, CUSTOMER acknowledges that PDSI will disable CUSTOMER access to WEBSTAFF. PDSI agrees that it will give CUSTOMER at least thirty (30) days prior written notice before it knowingly disables CUSTOMER's access to WEBSTAFF. In addition, PDSI agrees to indemnify CUSTOMER for all damages caused by such termination of access to WEBSTAFF or disabling of TELESTAFF software without notice to CUSTOMER. PDSI further warrants that TELESTAFF does not contain any code that will, upon the occurrence or nonoccurrence of any.event, allow it to disable TELESTAFF. If any such code is present, PDSI agrees to indemnify CUSTOMER for all damages suffered as a result of a disabling caused by such code. 12. COMMENCEMENT OF ACCEPTANCE TESTS, ACCEPTANCE DATE: (a) Acceptance Tests: Within five (5) business days of PDSI's notification to CUSTOMER that the program has been installed and CUSTOMER'S personnel have been trained, CUSTOMER shall commence performing the acceptance tests pursuant to the procedures, criteria and descriptions set forth in Appendix D. and shall complete such tests as quickly as practicable. Such acceptance tests shall be conducted at CUSTOMER's sites and on CUSTOMER's equipment. (i) Failure and Retesting: During the Testing Period, CUSTOMER shall immediately provide written notice to PDSI of any failure of TELESTAFF to substantially comply with the specifications set forth in Appendix D. Upon receipt of such notice, PDSI shall make such necessary corrections and modifications to TELESTAFF as will permit TELESTAFF to be ready for re- testing no later than thirty (30) days from receipt of CUSTOMER's first notice of failure. PDSI shall notify CUSTOMER when such corrections and modifications have been made, and CUSTOMER shall commence retesting TELESTAFF and complete such retesting as quickly as possible. If TELESTAFF still fails to pass the acceptance test, the CUSTOMER shall notify PDSI in writing, and shall have the right, at its option, to either 1) declare that deficiencies continue to exist and repeat the procedures set forth above, or 2) terminate the license and service agreement by giving notice of such termination to PDSI. (ii) CUSTOMER's Rights and Obligations Upon Termination After Failure of Acceptance Tests: Upon CUSTOMER's termination of this Agreement after failure of the acceptance tests, Customer shall promptly return TELESTAFF software and associated documentation and materials to PDSI and shall have the right to receive prompt reimbursement of all payments made to PDSI under this Agreement. (b) Acceptance Date: When the acceptance tests establish TELESTAFF is performing in reasonable accordance with written documentation, CUSTOMER shall execute an acceptance certificate, and the date of the execution of this certificate shall be the Acceptance Date. 13. WARRANTIES: (a) Limited Warranty: PDSO warrants TELESTAFF to be free from defects in materials and workmanship under normal use and to operate in substantial accordance with TELESTAFF user manuals. However, PDSI does not warrant that the function contained in TELESTAFF will meet CUSTOMER's requirements or that the operation of TELESTAFF will be uninterrupted or error free. Except as set for in this Section 13, the limited warranty set forth herein is in lieu of all other warranties expressed or implied, including but not limited to the implied warranted of merchantability and fitness for a particular purpose. (b) Warranty of Title: PDSI warrants that it has full title and ownership of TELESTAFF. PDSI further warrants that it has the full power and authority to grant the license granted by this Agreement to the CUSTOMER and that the license to and uses by the CUSTOMER of TELESTAFF will in no way constitute an infringement or other violation of any copyright, trade secret, trademark, patent or other proprietary right of any third party. 14. LIMITATION OF LIABILITY: PDSI's entire liability and CUSTOMER's exclusive remedies shall be either the replacement of TELESTAFF upon notification of reported deficiencies, or, in the event of nonperformance by PDSI or failure of the acceptance tests, as provided in paragraph 12(a)(ii) herein, reimbursement of all fees paid to PDSI under this Agreement. In no event will PDSI be liable to CUSTOMER, or any third party, for any claims or damages, including any lost wages, lost profits, lost savings or other incidental or consequential damages, arising out of the use or inability to use TELESTAFF even if PDSI has been advised of the possibility of such damages. 15. INDEMNIFICATION: (a) Indemnification for Personal Injury or Property Damage: Notwithstanding the provisions of paragraph 14, PDSI shall hold harmless and indemnify CUSTOMER, and its directors, officers, employees and agents, its City Council, boards and commissions (collectively, "the Indemnified Parties "), from /for any and all personal injury liability claims (including, without limitation, claims for bodily injury, death or damage to property), losses, demands, obligations, causes of action, suits, judgments, fines, penalties, liabilities, amounts agreed upon in settlement, costs and expenses (including attorney's fees) and /or damages suffered by the other party, arising from or directly related to this Agreement, which may arise from or relate to the negligent or intentional misconduct of PDSI, its employees or agents. Notwithstanding the foregoing, nothing herein shall be construed to require PDSI to indemnify the Indemnified Parties from any claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all personal injury and damage to property claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by PDSI. (b) Indemnification for Infringement: PDSI shall indemnify and hold harmless CUSTOMER, its City Council, boards, commissions, officers, agents and employees, against any and all claims, losses, liabilities, judgments, awards and costs, including legal fees and expenses, arising upon any claim of infringement of any trade secret, proprietary act, United States copyright or patent by use or possession of TELESTAFF or WEBSTAFF. CUSTOMER agrees to notify PDSI of any such claim promptly in writing and to allow PDSI to control the proceedings. CUSTOMER agrees to cooperate fully with PDSI during such proceedings. PDSI shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing. No settlement which prevents CUSTOMER from using TELESTAFF or WEBSTAFF shall be made without CUSTOMER's prior written consent. CUSTOMER shall have the right to participate at its own expense in the defense of any such suit or proceeding through counsel of its own choosing. In the event of such infringement, PDSI may replace TELESTAFF, in whole or in part, with a substantially compatible and functionally equivalent computer program, or modify TELESTAFF to avoid the infringement. In the event that PDSI cannot modify or replace TELESTAFF as stated above, CUSTOMER may terminate this Agreement. Upon such termination, PDSI shall promptly refund to CUSTOMER a pro rata amount of any fee paid under the Agreement based upon the unexpired portion of the then current term of the Agreement. 16. INSURANCE: Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. (i) Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. (ii) General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. (iii) Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. (iv) Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: (i) The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. (ii) This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. (iii) This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (iv) The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. (v) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. (vi) The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 17. INDEPENDENT CONTRACTOR: It is understood that CUSTOMER retains PDSI on an independent contractor basis and PDSI is not an agent or employee of the CUSTOMER. The manner and means of conducting the work are under the control of PDSI, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for PDSI or any of PDSI's employees or agents, to be the agents or employees of the CUSTOMER. PDSI shall have the responsibility for and control over the means of performing the work, provided that PDSI is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give the CUSTOMER the right to direct PDSI as to the details of the performance or to exercise a measure of control over PDSI shall mean only that PDSI shall follow the desires of CUSTOMER with respect to the results of the services. 18. SUBCONTRACTING: The parties recognize that a substantial inducement to CUSTOMER for entering into this Agreement is the professional reputation, experience and competence of PDSI. Assignments of any or all rights, duties or obligations of PDSI under this Agreement will be permitted only with the express written consent of CUSTOMER. PDSI shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of CUSTOMER. 19. AMENDMENTS: This AGREEMENT shall not be modified or amended except by another agreement in writing executed by PDSI and CUSTOMER, and approved as to form by CUSTOMER's City Attorney. 20. ENTIRE AGREEMENT: This AGREEMENT, including Appendices A, B, C and D attached hereto, supersedes all prior discussions, understanding and agreement between the parties with respect to the matters contained herein, and constitutes the entire agreement between the parties with respect to the matters contemplated herein. 21. GOVERNING LAW: This AGREEMENT shall be construed and enforced in accordance with the laws of the State of California, and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange 22. CONFLICTS OF INTEREST: PDSI or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interests that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, PDSI shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by CUSTOMER. PDSI shall indemnify and hold harmless CUSTOMER for any and all claims for damages resulting from PDSI's violation of this paragraph. 23. COMPLIANCE WITH ALL LAWS: Parties shall at their own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. Parties agree, assure and certify that, except as permitted by law, no person shall, on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex or sexual orientation, be excluded from participation in or be denied the benefits of the services provided pursuant to this Agreement, and that Parties shall not discriminate on said grounds in the selection and retention of employees and the procurement of materials and equipment, except as provided in Section 12940 of the Government Code of the State of California. 24. CONFLICTS OR INCONSISTENCIES: In the event there are any conflicts or inconsistencies between this Agreement and the attached Appendices, the terms of the Agreement shall govern. 25. NOTICES: All notices, requests, demands and /or other communications required or permitted to be given or made by this AGREEMENT shall be in writing and shall be delivered by commercial overnight delivery services which provides for receipt, or mailed by certified mail, return receipt requested, postage prepaid and addressed to the parties at the addresses referenced below. Any party may change its address for purposes of this AGREEMENT by notice in writing to the other party. All notices, demands, requests or approvals from PDSI to CUSTOMER shall be addressed to: Terry Ulaszewski Newport Beach Fire Department CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Phone: (949)644 -3352 FAX (949) 644 -3388 All notices, demands, requests or approvals from CUSTOMER to PDSI shall be addressed to PDSI at: Greg Ekstrom Principal Decision Systems International 625 The City Drive South, Suite 190 Orange, CA 92868 Phone: 1-800-850-7374 FAX (714)703 -2970 26. NO WAIVER: No failure on the part of any party hereto to exercise, and no delay in exercising any right, power or remedy or partial exercise of any right, power or remedy by any party will preclude any other or future exercise of any other right, power or remedy or partial right, power or remedy. No express waiver of assent by any party hereto to any default in any term or condition of this AGREEMENT shall constitute a waiver of or an assent to any succeeding default in the same or any other term or condition hereof. 27. ASSIGNABILITY: Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership orjoint- venture. 28. CONFIDENTIALITY; PRIVACY: (a) Definition — "Confidential information" means all confidential and proprietary information communicated electronically or by some other means by one party to the other party, with respect to the technology, business plans, techniques, operations, finances and customers of the disclosing party. Confidential Information shall include non - public personal information of CUSTOMER's employees, including home phone numbers and addresses. For purposes of this provision, "nonpublic personal information" shall also include in addition the meaning set forth in Section 509 of the Gramm -Leach Biley Act (PL 106- 102) (15 USC § 6809) and implementing regulations thereof. These obligations will survive the termination of this Agreement. (b) Nondisclosure — Each party agrees to (1) hold the other party's Confidential Information in strict confidence, (2) not to disclose such Confidential Information to any third party, and (3) not to use the other party's Confidential Information for any purpose except as permitted by this Agreement. Each party may disclose the other party's Confidential Information to its employees who have (a) been advised of the confidential nature of such information and have agreed to hold in confidence all Confidential Information obtained in connection with such employment, (b) have a bona fide need to know such information, but only to the extent necessary to carry out this Agreement. Each party agrees to instruct all such employees not to disclose such Confidential Information to third parties without the prior written permission of the disclosing party, except as may be required by law. (c) Return: Upon termination or expiration of this Agreement, the receiving party will promptly return to the disclosing party all tangible items containing or consisting of the disclosing party's Confidential Information, 29. USES OF NAMES AND LOGOS; PRESS RELEASES: PDSI shall not use CUSTOMER's names, or any abbreviations thereof, or any of CUSTOMER's logos or any adaptations thereof, in any advertising or promotions, or for any other commercial purposes, without CUSTOMER's prior written consent. Neither party shall issue any press release, or issue or release any advertising, marketing or promotional materials or presentations of any kind, whether written, oral or electronic, relating to this Agreement or any other business transaction between CUSTOMER and PDSI, without the prior written consent of the other party, which consent shall not be unreasonably withheld. 30. SEVERABILITY: If any term or portion of this Agreement is held to be invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 31. CONFLICTS OR INCONSISTENCIES: In the event there are any conflicts or inconsistencies between this Agreement and the Appendices or any other attachments attached hereto, the terms of this Agreement shall govern. 32. FORCE MAJEUR: Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises out of or is caused by any act of God or circumstances that are beyond its reasonable control, provided, however, that lack of funds shall not be deemed to be a circumstance beyond a party's reasonable control. The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of this Agreement. The parties shall use reasonable efforts to overcome such circumstances as promptly as practicable. IN WITNESS WHEREOF, the parties have signed this AGREEMENT on the day and year first above written. PDSI CITY OF NEWPORT BEACH, a Municipal Corporation (CUSTOMER) By: By: Title: Title: Mayor, City of Newport Beach Date: APPROVED AS TO FORM: Robin Clauson, Acting City Attorney for the City of Newport Beach Attachments: Appendix A Appendix B Appendix C Appendix D Date: ATTEST: LaVonne Harkless, City Clerk - Telestaff Hardware Components — Scope of Implementation Services — Scope of Service and Support — Acceptance Test Procedures and Criteria Appendix A— TeleStaff Hardware Components CUSTOMER will purchase the server, dongles and Dialogic board(s). PDSI will purchase the 12- concurrent connection database license as defined in Section 5 above. Following are the basic features and components included for each TeleStaff computer hardware option: TeleStaff Basic Server • Intel Pentium 2 GHz processor or better • 512 MB or greater RAM • 40 GB or larger Hard Drive • 48x CD -ROM Drive • 17" SVGA Monitor • V.90 Data /Fax Modem TeleStaff Telephony Server • TeleStaff Basic Server plus: • 4 port Dialogic Telephony system • Telephony system dongles (4 port) TeleStaff Database Server • Multimedia with speakers and microphone • Keyboard and mouse • Microsoft Windows 2000 Pro. • Iomega 250M Zip Drive • 4 hours 7 x 24 onsite service (3 years) • TeleStaff Basic Server plus: • Sybase Studio database license (1 concurrent user) • Sybase Client database license (3 concurrent users) TeleStaff Enterprise Server • TeleStaff Basic Server I�us: • 4 port Dialogic Telephony system • Telephony system dongles (4 port) • Sybase Studio database license (1 concurrent user) • Sybase Client database license (3 concurrent users) Appendix B — TeleStaff Implementation Services Partnership Agreement For the fee specified in paragraph 5 of this AGREEMENT, PDSI will train CUSTOMER staffing administrators on the operation of TeleStaff and will train CUSTOMER on how to configure the TeleStaff system using CUSTOMER data. The following steps comprise the TeleStaff Implementation services: Hand -Off: During this internal phase, the appropriate PDSI account representative transfers information on the CUSTOMER to the PDSI Implementation Manager (IM). The IM is a project manager who is responsible for coordinating all activities necessary to implement TeleStaff for the CUSTOMER. During this phase, PDSI will send the CUSTOMER an Implementation Welcome Packet containing an overview of the Implementation Process and information on how to prepare for TeleStaff. Kick -Off: During the Kick -Off phase, the IM and CUSTOMER will hold a conference call or the IM will go to CUSTOMER's site to review the Welcome Packet, to establish CUSTOMER contacts required by PDSI during the Implementation Process, and to set dates for the 5 day Implementation Training held at PDSI. Preparation: During the Preparation phase, the IM and CUSTOMER will hold a conference call to review TeleStaff data fields, to instruct the CUSTOMER on how to use the data import tool, and to instruct the CUSTOMER on how to analyze and document their staffing rules. Also during this phase, PDSI provides the CUSTOMER with the necessary installation documentation and ships the TeleStaff hardware to the CUSTOMER. Training — Module I PDSI will provide audio /visual presentations to review TeleStaff end user features. The presentations correspond with the Module I training manual. The project team must review presentations prior to the Module II training class. The audio /visual presentations can also be used as a resource when the CUSTOMER provides user training. Training — Module II The Module 11 training class covers TeleStaff staffing features. This class is a pre- requisite for configuration training. The class is offered over the Internet or at PDSI's training facility in Orange, California. The CUSTOMER may select the option that best meets their needs. Option #1: If the CUSTOMER chooses to participate in the Module II training class via the internet, the CUSTOMER will need to set up a training room so that each person has their own computer with the TeleStaff training database loaded. This allows for effective hands on training. The duration of the class is 7 hours and will be covered in one session. Option #2: The Module II training class at PDSI is held each Friday. The CUSTOMER may elect to participate in the Module II training class the Friday prior to the 5 -day configuration training class so that attendees only need to make 1 trip to PDSI. The class begins at 9am and ends by 5pm. Training - Configuration The TeleStaff implementation includes 5 consecutive days of configuration training at PDSI's facility in Orange, California. The configuration training will be done on the CUSTOMER'S database. The 5 days of training at PDSI is limited to 2 staff members. PDSI recommends that CUSTOMERS send staffing and business rules experts to the training. The class begins each day at 9am and ends by 5pm. Training - Tuning PDSI will provide a 2 -day training class at the CUSTOMER'S site. The purpose of the class is to fine tune the configuration after the CUSTOMER has gone Live with TeleStaff. The CUSTOMER determines the agenda for this TeleStaff Tuning class. For information on additional advanced training courses offered by PDSI, please contact your TeleStaff Implementation Manager or your Account Executive. Appendix C — Annual Service and Support All Software Errors reported by CUSTOMER shall be resolved as set forth below. Initial response by PDSI will be based upon CUSTOMER's full description of the problem. Resolution response will be based upon the priority assigned by PDSI as defined below. If CUSTOMER determines that a Software Error exists, CUSTOMER shall notify PDSI by telephone. Telephone notification will be made to PDSI's support line at (800) 850 -7374. "Normal Business Hours" are 8:00 AM through 5:00 PM (Pacific Standard Time), Monday through Friday, excluding holidays. The main support line will be answered either by an attendant or automated attendant at all hours. During Normal Business Hours, each trouble report will be assigned a Help Desk Log Number, The Log Number shall be used for all subsequent inquiries relating to the original problem. During Normal Business Hours, the attendant will ring the TeleStaff Support Department and the call will be handled according to the priority assigned by PDSI. In the case of priority -one problems, as noted below, CUSTOMER may be able to speak directly to a TeleStaff Support Representative if one is available. Outside of Normal Business Hours, Priority 1 support, as described in this appendix, will be made available through a pager system. The phone number is 800 - 850 -7374. Priority 1 support is available 24 hours per day, 7 days per week to CUSTOMER's with LIVE status. All other problems will be handled on a callback basis. If requested or so stipulated in the response time criteria below, a PDSI representative will return the call in a manner consistent with the priority and order in which the call was received. CUSTOMER shall make every effort to respond to PDSI in a timely fashion when requests are made to follow -up calls or additional documentation on the reported problem. Priorities are assigned as follows: Pri Hours of 124 hours /day, 7 days /week Description: A critical software error that severely impacts the ability of CUSTOMER to perform ALL automated staffing functions I (TeleStaff is down). This level of priority is only available to I CUSTOMER's that are using TeleStaff in a production ...._ ..... . __ !. environment (LIVE accounts ONLY). Initial ' During Normal Business Hours, immediate response if a Support Response: Representative is available. Otherwise, PDSI will respond with a call back within one hour. Outside of Normal Business Hours (including holidays), PDSI will respond with a call back within -.two hours. Resolution ' PDSI will work aggressively to provide CUSTOMER with a Responsq: workaround solution or to completely resolve the problem. Notification: ( It is the responsibility of CUSTOMER to alert PDSI of a possible Priority -One issue. PDSI will update CUSTOMER of progress frequently during problem resolution and notify CUSTOMER once the workaround has been provided or the problem has been resolved. Priority Two I _ Hours c Availabilit Description: i Initial Response: i Resolution Response: EVAIMS Time. Standa A non - critical software error, which prevents the user from performing a data entry or system administration function. These do not include cosmetic, documentation, or reporting problems. These also do not include questions or inquiries regarding the operation of the software or its installation and training. During Normal Business Hours, PDSI will respond with a call back within three hours. Outside of Normal Business Hours (including holidays), PDSI will respond with a call back the next business day_ _ PDSI will provide a workaround for CUSTOMER when possible PDSI will provide a problem resolution in the form of an Upgrade or modification to the Software in an upcomina Update. rti&ation: PDSI will notify CUSTOMER when a workaround has been provided or the problem has been resolved. Priority Three Hours of Monday through Friday, 6:30 AM to 6:00 PM, Pacific Standard Availability: Time. Description: : All other software or documentation errors not described above. I These include but are not limited to: • Reporting errors or calculation problems • Documentation inaccuracies • Cosmetic issues • Misspellings • Product Enhancement requests Questions or inquiries relating to TeleStaff Software functionality, system administration or installation Initial PDSI will respond to these items if specifically requested to do Response: so at the time of the request. If a reply is requested, PDSI will respond within an average of twenty -four (24) hours during i Normal Business Hours. Resolution j PDSI will correct documentation errors in upcoming releases of Notification: If requested, PDSI will notify the CUSTOMER when a workaround has been provided or the problem has been resolved. Appendix D — Acceptance Criteria Acceptance will occur when TELESTAFF has been installed, tested, and is found to perform in reasonable accordance with written documentation. The testing will include but is not limited to the following items: System Administration • Demonstrate administrative and utility programs. • Demonstrate file management and report writing functions. • Demonstrate account, access rights, and employee profile creation with appropriate pay code and pay schedule. • Review privacy and security features. • Demonstrate system restoration function System Functions • Demonstrate schedule creation function. • Demonstrate business rules for calculating overtime assignment priority in fire suppression and lifeguard divisions. • Demonstrate move up /move down /alternative position fill function with appropriate pay code generation. • Demonstrate accuracy and completeness of payroll file upload to Pentamation of fire suppression, lifeguard and fire admin pay code and man hour expenditures • Demonstrate leave accrual calculations and /or back loading from Pentamation. • Demonstrate daily roster construction and transfer to SUNPRO Incident/Resource Management System. • Demonstrate that roster changes occurring during course of shift in SUNPRO result in back loading of those changes into TELESTAFF. • Demonstrate employee request transaction via City Intranet (login, view work schedule, view accruals, place leave request, place standby request, verify automatic fill recommendation, demonstrate BC /Lifeguard Captain approval, replacement employee notification, replacement employee acknowledgement). • Demonstrate employee request transaction via Internet access (login, view work schedule, view accruals, place leave request, place standby request, verify automatic fill recommendation, demonstrate BC /Lifeguard Captain approval, replacement employee notification, replacement employee acknowledgement). Demonstrate employee request transaction via telephone (login, view work schedule, view accruals, place leave request, place standby request, verify automatic fill recommendation, demonstrate BC/Lifeguard Captain approval, replacement employee notification, replacement employee acknowledgement). • Demonstrate simultaneous fire suppression and lifeguard notification and acknowledgement functions. Additional Functions • Demonstrate Key Management/EOC Callout notification and acknowledgement function. • Determine notification and acknowledgement function system saturation and time duration. • Demonstrate alarm feature for certifications and license expiration.