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4.2 SR 08-19-2024The Elk River Vision A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and community engagement that encourages and inspires prosperity Request for Action To City Council Item Number 4.2 Meeting Date August 19, 2024 Prepared By Cal Portner, City Administrator Item Description Lexipol Services Contract Reviewed by Cal Portner Cal Portner Mark Dickinson Darren McKernan Tina Allard Action Requested Approve, by motion, Master Service Agreements with Lexipol. Background/Discussion The Elk River Police and Fire Departments have initiated Master Service Agreements with Lexipol for their policy and training manuals. these are cloud-based policy management manuals utilizing best practices templates to ensure continuing compliance with state and federal law changes. Lexipol also provides ongoing training bulletins to assist officers and firefighters. The police department entered into an agreement in 2012 and the fire department in 2023. We previously discussed them in budgets. On the advice of the city attorney, we are now having them formally approved by the Council. Financial Impact These have been budgeted for since their inception. Mission/Policy/Goal Elk River Mission Attachments 1. OSA Elk River PD-MN 2. Lexipol agreement Page 25 of 327 Page 26 of 327 Page 27 of 327 Page 28 of 327 Page 29 of 327 DocuSign Envelope ID: 1B28E8C1-2D51-47D0-95F4-C634AB10B700 Jan Roos Vice President & General Counsel 7/10/2023 7/1/2023 Page 30 of 327 Exhibit A SELECTED SERVICES AND ASSOCIATED FEES Agency is purchasing the following: 7/1/2023 -12/31/2023: Prorated Phase 1 Fire Policy Subscription, and One-Time-Cost Policy Cross Reference, Content Extraction, and Policy Implementation Tiers I & II QTY DESCRIPTION UNIT PRICE SOURCEWELL DISC DISC AMT EXTENDED 1 Annual Fire Policy Phase 1 Manual & Daily Training Bulletins w/Supplemental Publication Service w/Fire Operations Procedures (Start: 7/1/2023 End: 12/31/2023) USD 1,769.50 USD 0.00 USD 1,769.50 Subscription Line Items Total USD 0.00 USD 1,769.50 1 Fire Standard Policy Cross-Reference USD 1,327.00 5%USD 66.35 USD 1,260.65 1 Fire Agency-Specific Content Extraction USD 2,743.00 5%USD 137.15 USD 2,605.85 1 Fire Tier I Implementation USD 2,648.00 5%USD 132.40 USD 2,515.60 1 Fire Tier II Implementation USD 2,879.00 5%USD 143.95 USD 2,735.05 One-Time Line Items Total USD 479.85 USD 9,117.15 USD 479.85 USD 10,886.65 7/1/23 -12/31/23: Prorated Phase 1 Sub., X-ref., Extraction, Tiers I & II Sourcewell Discount:USD 479.85 7/1/23 -12/31/23: Prorated Phase 1 Sub., X-ref., Extraction, Tiers I & II TOTAL:USD 10,886.65 1/1/2024 - 12/31/2024: First Annual Fire Policy Subscription (12 months), and One-Time-Cost Policy Implementation Tiers III, IV, and V QTY DESCRIPTION UNIT PRICE SOURCEWELL DISC DISC AMT EXTENDED 1 Annual Fire Policy Manual & Daily Training Bulletins w/Supplemental Publication Service w/Fire Operations Procedures (Start: 1/1/2024 End: 12/31/2024) USD 5,609.00 5%USD 280.45 USD 5,328.55 Subscription Line Items Total USD 280.45 USD 5,328.55 1 Fire Tier III Implementation USD 3,001.00 5%USD 150.05 USD 2,850.95 1 Fire Tier IV Implementation USD 2,590.00 5%USD 129.50 USD 2,460.50 1 Fire Tier V Implementation USD 2,788.00 5%USD 139.40 USD 2,648.60 DocuSign Envelope ID: 1B28E8C1-2D51-47D0-95F4-C634AB10B700 Page 31 of 327 QTY DESCRIPTION UNIT PRICE SOURCEWELL DISC DISC AMT EXTENDED One-Time Line Items Total USD 418.95 USD 7,960.05 USD 699.40 USD 13,288.60 USD 699.401/1/2024-12/31/2024: First Annual Subscription (12 months) & Tiers III, IV, and V Sourcewell Discount: 1/1/2024-12/31/2024: First Annual Subscription (12 months) & Tiers III, IV, and V TOTAL:USD 13,288.60 1/1/2025: First Annual Subscription (12 months) Begins on Its Own QTY DESCRIPTION UNIT PRICE SOURCEWELL DISC DISC AMT EXTENDED 1 Annual Fire Policy Manual & Daily Training Bulletins w/Supplemental Publication Service w/Fire Operations Procedures (Start: 1/1/2025 End: 12/31/2025) USD 5,609.00 5%USD 280.45 USD 5,328.55 Subscription Line Items Total USD 280.45 USD 5,328.55 USD 280.45 USD 5,328.55 1/1/2025: First Annual Subscription (12 months) Begins on Its Own Sourcewell Discount:USD 280.45 1/1/2025: First Annual Subscription (12 months) Begins on Its Own TOTAL:USD 5,328.55 The foregoing pricing has been prorated for the benefit of Agency and Agency therefore agrees that they will waive the right to cancel this agreement until the end of the first renewal period. Discount Notes 5% off all services. City is a Sourcewell cooperative purchasing member - ID # 61863. Notes •Annual Fire Policy Manual Subscription is based on equivalency of 9 full-time fire authorized staff. •Standard Policy Cross-Reference and Content Extraction based on 100 pages of existing agency content. DocuSign Envelope ID: 1B28E8C1-2D51-47D0-95F4-C634AB10B700 Page 32 of 327 Copyright © Lexipol, LLC 1995-2023 Rev. 1.1.2023 1 Exhibit B Terms and Conditions of Service These Terms and Conditions of Service (the “Terms”) govern the rights and obligations of Lexipol and Agency under this Agreement. Lexipol and Agency may each be referred to herein as a “party” and collectively as the “parties.” 1. Definitions. Each of the following capitalized terms will have the meaning included in this Section 1. Other capitalized terms are defined within their respective sections, below. 1.1 “Agency” means the department, agency, office, organization, company, or other entity purchasing and/or otherwise subscribing to the Lexipol Services set forth in Exhibit A. 1.2 “Agency Data” means data, information, and content owned by Agency prior to the Effective Date, or which Agency provides during the Term of this Agreement for purposes of identifying authorized users, confirming agency or department information, or other purposes that are ancillary to receipt of the Service. 1.3 “Agreement” means the combination of the cover sheet (signature page); Exhibit A (“Selected Services and Associated Fees”); this Exhibit B; and any other documents attached hereto and expressly incorporated herein by reference. 1.4 “Effective Date” means the date specified on the cover sheet (signature page), or as otherwise expressly set forth and agreed upon by Lexipol and Agency in a writing and defined as the “Effective Date.” 1.5 “Initial Term” means the period commencing on the Effective Date and continuing for the length of time indicated on Exhibit A. If not so indicated, the default Initial Term is one (1) year from the Effective Date. 1.6 “Lexipol Content” means all content in any format including but not limited to: written content, images, videos, data, information, and software multimedia provided by Lexipol and/or its licensors via the Services. 1.7 “Services” means all products and services, including but not limited to all software subscriptions, professional services, and ancillary support services, as may be offered by Lexipol and/or its affiliates from time to time. 2. Term; Renewal. This Agreement becomes enforceable upon signature by Agency’s authorized representative, with an Effective Date as indicated on the cover page. Unless expressly stated in the “Custom Agreement Terms” section of Exhibit A, this Agreement shall automatically renew in successive one-year periods (each, a “Renewal Term”) on the anniversary of the Effective Date unless a party provides written notice of non-renewal to the other party at least sixty (60) days prior to such renewal. The Initial Term and all Renewal Terms collectively comprise the “Term” of this Agreement. 3. Termination. 3.1 For Convenience; Non-Appropriation. This Agreement may be terminated at any time for convenience (including due to lack of appropriation of funds) upon sixty (60) days written notice.1 3.2 For Cause. This Agreement may be terminated by either party, effective immediately, (a) in the event the other party fails to discharge any obligation, including payment obligations, or remedy any default hereunder for a period of more than thirty (30) calendar days after it has been provided written notice of such failure or default; or (b) in the event that the other party makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to the bankruptcy laws of any applicable jurisdiction. 3.3 Effect of Expiration or Termination. Upon the expiration or termination of this Agreement for any reason, Agency’s access to Lexipol’s Services shall immediately cease unless Lexipol has, in its sole discretion, provided for their limited continuation. Termination or expiration of this Agreement shall not, however, relieve either party from any obligation or liability that has accrued under this Agreement prior to the date of such termination or expiration, including payment obligations. 1 Note: fees paid for Online Services are not eligible for refund, proration, or offset in the event of Agency’s termination for convenience as Online Services are delivered in full as of the Effective Date. Fees pre-paid for Professional Services are eligible for refund, proration, or offset to the extent such Services have not been delivered or utilized by Agency. DocuSign Envelope ID: 1B28E8C1-2D51-47D0-95F4-C634AB10B700 Page 33 of 327 Copyright © Lexipol, LLC 1995-2023 Rev. 1.1.2023 2 4. Fees; Invoicing. Lexipol will invoice Agency at the commencement of the Initial Term and at the commencement of each Renewal Term. Agency agrees to remit payment within thirty (30) calendar days following receipt of Lexipol’s invoice. Payments may be made electronically or by mailing a check to Lexipol at 2611 Internet Blvd, Ste. 100, Frisco, TX 75034 (Attn: Accounts Receivable). Lexipol reserves the right to increase fees for Renewal Terms. All fee amounts stated in Exhibit A are exclusive of taxes and similar fees now in force or enacted in the future. Agency is responsible for all third-party fees (e.g., wire fees, bank fees, credit card processing fees). Unless otherwise exempt, Agency is responsible for and will pay in full all taxes related to its receipt of Lexipol’s Services, except for taxes based on Lexipol’s net income. 5. Terms of Service. The following terms and conditions govern access to and use of Lexipol’s Services: 5.1 Online Services. Lexipol’s Online Services include all cloud-based services offered by Lexipol and its partners, affiliates, and licensors. Online Services include, without limitation, Lexipol’s Knowledge Management System (“KMS”) for policy, Learning Management System (“LMS”)2, GrantFinder, and Cordico wellness applications (collectively, the “Online Services”). Lexipol’s Online Services are proprietary and, where applicable, protected under U.S. copyright, trademark, patent, and/or other applicable laws. By subscribing to Lexipol’s Online Services, Agency receives a personal, limited, non-sublicensable and non-assignable license to access and use such Services in conformity with these Terms. 5.2 Professional Services. Lexipol’s Professional Services include all Services that are not part of Lexipol’s Online Services, and which require the professional expertise of Lexipol personnel and/or contractors, including implementation support for policy manuals, technical support for online learning, accreditation consulting, grant writing and consulting3, and projects requiring regular input from Lexipol’s subject matter experts (collectively, “Professional Services”). Lexipol shall provide all Professional Services in accordance with industry best practices. 5.3 Intellectual Property; License. Lexipol’s Services and all Lexipol Content are the proprietary intellectual property of Lexipol and/or its licensors, and are protected where applicable by copyright, trademark, and patent laws. Nothing contained in this Agreement or these Terms shall be construed as conferring any right of ownership or use to Lexipol’s Services or Lexipol Cont ent. Notwithstanding the foregoing, Agency may, in limited circumstances (e.g. creation, modification, and updating of Agency’s policy manuals) create Derivative Works based on Lexipol’s Content and shall retain a personal, non-commercial, non-sublicensable and non-assignable license to use such Derivative Works, including beyond the expiration or termination of this Agreement. “Derivative Works” include all work product based on or which incorporates any Lexipol Content, including any revision, modification, abridgement, condensation, expansion, compilation, or any other form in which Lexipol Content, or any portion thereof, is recast, transformed, or adapted. Agency acknowledges and agrees that Lexipol shall have no responsibility to update Lexipol Content used by Agency beyond the Term of this Agreement and shall have no liability whatsoever for Agency’s creation or use of Derivative Works. 5.4 Account Security. Access to Lexipol’s Services is personal and unique to Agency. Agency shall not assign or otherwise transfer any such rights to any other person or entity. Except as set forth herein, Agency remains responsible for maintaining the security and confidentiality of Agency’s usernames and passwords and the security of Agency’s accounts. Agency will immediately notify Lexipol if Agency becomes aware that any person or entity other than authorized Agency personnel has used Agency’s account or Agency’s usernames and/or passwords. 5.5 Agency Data. Lexipol will use commercially reasonable efforts to ensure the security of all Agency Data. Lexipol’s Services use the Secure Socket Layer (SSL) protocol, which encrypts information as it travels between Lexipol and Agency. However, data transmission on the internet is not always 100% secure and Lexipol cannot and does not warrant that information Agency transmits to or through Lexipol or the Services is 100% secure. Lexipol’s use of Agency Data is limited to providing the Services, retaining records in the regular course of business, and complying with valid legal obligations. 6. Confidentiality. During the Term of this Agreement, each party may disclose information to the other party that would be reasonably considered confidential, including Agency Data (collectively, “Confidential Information”). The receiving party will: (a) limit disclosure of any such Confidential Information to the receiving party’s authorized representatives; (b) advise its personnel and agents of the confidential nature of the Confidential Information and of the obligations set forth in this Agreement; and (c) not disclose any Confidential Information to any third party unless expressly authorized by the disclosing party. A party may disclose Confidential Information pursuant to a valid governmental, judicial, or administrative order, subpoena, regulatory request, Freedom of 2 LMS Services include, but are not limited to: PoliceOne Academy, FireRescue1 Academy, EMS1 Academy, Corrections1 Academy, and LocalGovU. 3 Agency is responsible for submitting all information reasonably required by Lexipol’s grant writing team in a timely manner and always at least five (5) days prior to each grant application submission date. Agency is responsible submissions of final grant applications by grant deadlines. Failure to timely submit required materials to Lexipol’s grant writing team will result in rollover of project fees to next grant application cycle, not a refund of fees. Requests for cancellation of grant writing services which have already begun will result in a 50% fee of the total value of the service. DocuSign Envelope ID: 1B28E8C1-2D51-47D0-95F4-C634AB10B700 Page 34 of 327 Copyright © Lexipol, LLC 1995-2023 Rev. 1.1.2023 3 Information Act (FOIA) request, Public Records Act (PRA) request, or equivalent, provided that the disclosing party promptly notifies, to the extent practicable, the other party in writing prior to such disclosure so that the other party may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information. Each party shall be responsible for any breach of this section by any of such party’s personnel or agents. The parties may also disclose the fact that they are working together, including for promotional purposes, and include each other’s name and logo(s) for such purposes. 7. Warranty. LEXIPOL WARRANTS THAT ITS SERVICES ARE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER IN ACCORDANCE WITH PREVAILING INDUSTRY STANDARDS, THAT THEY SHALL BE FIT FOR THE PURPOSES SET FORTH HEREIN, AND THAT SUCH SERVICES SHALL NOT INFRINGE THE RIGHTS OR INTELLECTUAL PROPERTY OF THIRD PARTIES. NOTWITHSTANDING THE FOREGOING, LEXIPOL’S SERVICES ARE PROVIDED “AS-IS” AND LEXIPOL DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. 8. Indemnification. Lexipol will indemnify, defend, and hold harmless Agency from and against any and all loss, liability, damage, claim, cost, charge, demand, fine, penalty, or expense arising directly and solely out of Lexipol’s gross negligence or willful misconduct in providing Services pursuant to this Agreement. Agency shall likewise indemnify, defend, and hold Lexipol harmless from and against any and all loss, liability, damage, claim, cost, charge, demand, fine, penalty, or expense arising out of acts or omissions by Agency, Agency’s personnel, or any party acting on Agency’s behalf. 9. Limitation of Liability. Each party’s cumulative liability resulting from any claims, demands, or actions arising out of or relating to this Agreement, the Services, or the use of any Lexipol Content shall not exceed the larger of: the aggregate amount of fees paid to Lexipol by Agency during the twelve-month period immediately prior to the assertion of such claim, demand, or action; or $10,000.00. In no event shall either party be liable for any indirect, incidental, consequential, special, exemplary damages, or lost profits, even if such party has been advised of the possibility of such damages. 10. General Terms. 10.1 Entire Agreement. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements with respect to the subject matter hereof. No representation, promise, or statement of intention has been made by either party that is not embodied herein. Terms and conditions set forth in any purchase order or othe r document that are inconsistent with or in addition to the terms and conditions set forth in this Agreement are rejected in their entirety and void, regardless of when received, without further action. No amendment, modification, or supplement to this Agreement shall be binding unless it is made in writing and signed by both parties. 10.2 General Interpretation. The terms of this Agreement have been chosen by the parties hereto to express their mutual intent. This Agreement shall be construed equally against each party without regard to any presumption or rule requiring construction against the party who drafted this Agreement or any portion thereof. 10.3 Invalidity of Provisions. Each provision contained in this Agreement is distinct and severable. A declaration of invalidity or unenforceability of any provision or portion thereof shall not affect the validity or enforceability of any other provision. Should any provision or portion thereof be held to be invalid or unenforceable, the parties agree that the reviewing authority should endeavor to give effect to the parties’ intention as reflected in such provision to the maximum extent possible. 10.4 Compliance; Governing Law. Each party shall maintain compliance with all applicable laws, rules, regulations, and orders relating to its obligations pursuant to this Agreement. This Agreement shall be construed in accordance with, and governed by, the laws of the state in which Agency is located, without giving effect to any choice of law doctrine that would cause the law of any other jurisdiction to apply. 10.5 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other. Notwithstanding the foregoing, this Agreement may be assumed by a party’s successor in interest through merger, acquisition, or consolidation without additional notice or consent. 10.6 Waiver. Either party’s failure to exercise, or delay in exercising, any right or remedy under any provision of this Agreement shall not constitute a waiver of such right or remedy. 10.7 Notices. Any notice required hereunder shall be in writing and shall be made by certified mail (postage prepaid) to known, authorized recipients at such address as each party may indicate from time to time. In addition, electronic mail (email) to established and authorized recipients is acceptable when acknowledged by the receiving party. DocuSign Envelope ID: 1B28E8C1-2D51-47D0-95F4-C634AB10B700 Page 35 of 327