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HomeMy WebLinkAbout2017 Ordinance No. 013ORDINANCE NO. 13 SERIES OF 2017 BY AUTHORITY COUNCIL BILL NO. 13 INTRODUCED BY COUNCIL MEMBER GILLIT AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS AND THE CITY OF ENGLEWOOD/ENGLEWOOD POLICE DEPARTMENT WHEREAS, pursuant to the provisions of Article XIV, Section 18(2)(a) of the Colorado Constitution, Section 29-1-203, C.R.S., there is established a means whereby governmental units may cooperate or contract with one another to make the most efficient and effective use of their powers and responsibilities; and WHEREAS, Douglas County has developed a system to manage and exchange information regarding sex offenders: and WHEREAS, the information is accessed through a web-based interactive software program called "Satar"; and WHEREAS, Douglas County has exclusive rights of ownership in the Sotar system; and WHEREAS, the City of Englewood Police Department desires to obtain access to the Solar system: and WHEREAS, Douglas County agrees to provide the City of Englewood access to the Satar application on a basis commonly known as "software as a service", whereby the City of Englewood has access to, but does not receive a copy of Solar, and obtains no right, title, or interest whatsoever in or to the system. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Intergovernmental Agreement between the Board of County Commissioners of the County of Douglas and the City of Englewood/Englewood Police Department, attached hereto as Exhibit A, is hereby accepted and approved by the Englewood City Council. Section 2. The Mayor and City Manager are authorized to execute and attest said Agreement for and on behalf of the City of Englewood. Introduced, read in full, and passed on first reading on the 3rd day of April, 2017. Published by Title as a Bill for an Ordinance in the City's official newspaper on the Slh day of April, 2017. Published as a Bill for an Ordinance an the City's official website beginning on the 5th day of April, 2017. Read by Title and passed on final reading on the 171h day of April, 2017. Published by Title in the City's official newspaper as Ordinance No. 13, Series 2017, on the 20th day of April, 2017. Published by Title on the City's official website beginning on the 19th day of April, 2017 for thirty (30) days. I, Stephanie Carlile, Acting City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. 13, Series of 2017. Exhibit A AGREEl\mNT BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS AND THE CITY OF ENGLEWOOD/ ENGLEWOOD POLICE DEPARTMENT THIS AGREEMENT made this_ day of _____ , 20 _, by and between the Board of County Commissioners of the County of Douglas, State of Colorado ("DOUGLAS COUNTY''), and the CITY OF ENGLEWOOD/ ENGLEWOOD POLICE DEPARTMENT hereinafter referred to as ("USER"), hereinafter referred to jointly as the Parties ("PARTIES"); and WHEREAS, pursuant to the provisions of Article XIV, Section 18(2}(a) of the Colorado Constitution, and Section 29-1-203, C.R.S., there is established a means whereby governmental units may cooperate or contract with one another to make the most efficient and effective use of their powers and responsibilities; and WHEREAS, DOUGLAS COUNTY has developed a system to manage and exchange information regarding sex offenders which is accessed through a web-based interactive software program called SOTAR™. DOUGLAS COUNTY has exclusive rights of ownership in the SOTAR™ system including, but not limited to, SOTAR™, the name, the software, all source code contributed by Douglas County, the structure of any data repositories created to support SOTARm, and all associated documentation (collectively, "SYSTEM"). WHEREAS, USER desires to obtain access to the SOTARn• SYSTEM. WHEREAS, DOUGLAS COUNTY agrees to provide USER access to the SOT AR™ application on a basis commonly known as "software as a service" whereby USER has access to, but does not receive a copy of, SOT ARn• and obtains no right, title or interest whatsoever in or to the SYSTEM. NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and the recitals as set forth above, the PARTIES hereby agree as follows: I. TERM OF AGREEMENT AND TERMINATION. The effective date of this AGREEMENT shall be the date of signing by DOUGLAS COUNTY and USER, whichever is the last to sign. This AGREEMENT shall remain in full force and effect from the effective date until either PARTY elects to terminate this AGREEMENT upon 30 days prior written notice to the other PARTY. 2. SERVICES. DOUGLAS COUNTY will provide USER non-exclusive, limited access to SOT AR for only the following activities: view the ponion of SOT AR"1 available to law enforcement personnel (which includes access to all data input by jurisdictions that participate in SOTARn1), view the portion of SOT ARn1 available to the general public and, subject to Section 7 below, access SOTARn1s0 that USER can input data regarding sex offenders residing in its jurisdiction (all of the above collectively are "SERVICES"). DOUGLAS COUNTY may suspend or terminate the SERVICES in the event USER fails to comply with any of the terms and conditions of this AGREEMENT and may pursue all other remedies that DOUGLAS COUNTY has available to it against USER. USER shall not be entitled to a credit or refund in the event this AGREEMENT is tenninated pursuant to this Section 2. 3. USAGE. USER agrees that its access to and use of the portion of SOTARn1 available to law enforcement, access to the data repository underlying SOTAR™, and all associated documentation will be limited to the law enforcement personnel employed by USER and the Local Administrators designated by USER. USER shall not, directly or indirectly, disclose, copy, distribute or publish to any third party any information from SOTAR™ except for information obtained from the portion of SOT AR™ available to the general public. USER may inform the general public that SOT AR™ exists and how lo access the portion of SOT AR n, available to the general public. The general public will only be able to view the portion of SOTAR™available to the general public. USERS shall not violate any federal (including CJIS), state or local statutes, charter provisions, ordinances, rules, regulations, or standards that apply to the storing, handling and disclosure of information regarding any person listed in the SYSTEM. A. FBI Criminal Justice Information Services (CJIS) Compliance: J. CCIC OSN Validation -Individuals authorized to access SOTAR will have a unique and active OSN that is validated and authorized by the Colorado Bureau of Investigation. Individuals wilJ not share logins. USER is responsible for inactivating users who leave the agency or are otherwise ineligible for access to CJIS protected data. 2. IP Registration -Individuals in USER agency shall access the SOT AR1'M SYSTEM from an approved and valid IP Address that has been pre-determined by USER'S IT Department. A single address may be entered, or a range from which your device may connect to the SOTAR™ SYSTEM. 3. USER will adhere to the current CJIS Security Policy regarding the proper access, use, and dissemination of Criminal History Record Information and associated procedures. 4. USER Agency 's Jurisdiction Administrator has the ability to enter this information if available. If these conditions are not met, SOTARTM SYSTEM access will be limited to non-CJIS information using the public view of the system. 4. SERVICE FEE. The PARTIES expressly recognize and agree that DOUGLAS COUNTY provides this SERVICE at a significant expense. The PARTIES further recognize and agree that, although DOUGLAS COUNTY agrees initially to provide this SERVICE to USER for no fee, it is under no obligation to do so indefinitely. Upon 30-days written notice, the COUNTY may impose a new or increased fee , nt which time USER may elect to discontinue the SERVICE or execute an Addendum agreeing to pay said new or increased fee . 2 5. COMPLIANCE WITH ARTICLE X SECTION 20 OF THE COLORADO CONSTITUTION {IF APPLICABLE TO USER): Notwithstanding olher provisions in this Agreement to the contrary, the PARTIES understand and acknowledge that they are subject to Article X, Section 20 of the Colorado Constitution ("TABOR"). A. The PARTIES do not intend to violate the terms and requirements of TABOR by the execution of this Agreement B. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the PARTIES are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the PARTIES' current fiscal period ending upon the next succeeding December 31. C. Financial obligations of the PARTIES payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with ordinances and resolutions of the responsible party and other applicable Jaw. D. Failure of a party to make approprialion of amounts required in any fiscal year, if not promptly cured, shall result in termination of this Agreement. 6. DEPLOYMENT AND OPERATION . DOUGLAS COUNTY shall provide the SYSTEM in its "AS IS" condition. DOUGLAS COUNTY is not obligated to provide customizations specific to USER for the SYSTEM. DOUGLAS COUNTY shall use reasonable efforts to maintain the servers and infrastructure necessary to run the SYSTEM. Provided, however, inaccessibility of the SYSTEM related to high traffic volume shall not be a breach of this AGREEMENT. USER shall call 303-814-7040 (or such other number USER is notified lo call) for any issues in accessing SOTAR or the proper function of the SYSTEM. DOUGLAS COUNTY may modify (add, delete or change) the functions and format or the SYSTEM at any time and in any way without any advance notice to USER. DOUGLAS COUNTY may discontinue the SYSTEM altogether at any time upon 30 days prior written notice, in which event USER shall be entitled to a pro rated credit of the service fee, if applicable, that USER paid for the year in which the discontinuance occurs. The credit may be applied to any amounts USER owes to DOUGLAS COUNTY. 7. LOCAL ADMINISTRATORS. USER will designate a maximum of three (3) Local Administrators within USER'S jurisdiction and provide DOUGLAS COUNTY with their contact information, and notify DOUGLAS COUNTY promptly if they are removed or replaced. DOUGLAS COUNTY will provide and maintain a contact number and email address, through which only USER'S designated Local Administrator(s) may communicate to DOUGLAS COUNTY any issues or concerns with SYSTEM availability or performance. DOUGLAS COUNTY will communicate via the contact information for the Local Administrators it has on file regarding the 3 SYSTEM including, but not limited to, any planned system maintenance or outages or known system defects. 8. USER ACCESS AND MAINTENANCE; LICENSE. As a condition of granting USER access to the SYSTEM, USER shall input data on all existing and new sex offenders in USER'S jurisdiction and manage existing data in the data repository underlying SOT AR™. DOUGLAS COUNTY will provide the Local Administrator(s) with a secure login ID and password, limited system documentation and instructions for acceptable use. USER'S Local Administrators shall be responsible for provisioning, de-provisioning, mainlaining and supporting system operators in USER'S jurisdiction. Each operator shall have a unique login in the system. Only the Local Administrator for that jurisdiction shall have access to the user management feature for the USER'S jurisdiction. USER understands and agrees that USER shall be solely liable for any errors, omissions or claims arising out of or related to the data USER input into the data repository underlying the SOTAR™ application. USER understands and agrees that all data input by USER will be viewable by all other authorized users of the SYSTEM. 9. USE OF USER INFORMATION. USER understands and agrees that, even if USER discontinues is use of the SOT ARna application, DOUGLAS COUNTY and all active users of the SOTARn1 application shall have the continued right to use the data contributed by USER, provided such use complies with this Agreement. Neither DOUGLAS COUNTY nor any other authorized USERS shall have any obligation at any time to segregate or stop using the information USER contributes to the data repository underlying SOTAR™. JO. NO REVERSE ENGINEERING. USER shall not reverse engineer, decompile, decrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of any software, products, models or prototypes related to the SYSTEM. USER shall not copy any part of the SYSTEM for any reason, including that information input by USER or related to USER'S jurisdiction. 1 I. NO TfilRD PARTY USE OR ACCF.SS . USER shall not sell or in any manner, directly or indirectly, give any access to SOTAR™, the data repository underlying SOTAR™, documentation, or derivative works to any third party, including but not limited to, any governmental agency in USER'S jurisdiction, any other government agency, or any for profit or non-profit entity. All inquiries from third parties regarding access to the SYSTEM must be directed to DOUGLAS COUNTY. 12. EXCLUSIVE OWNERSIIlP. It is expressly understood and agreed by USER that the SYSTEM is protected by copyright and other intellectual property laws and that DOUGLAS COUNTY is the sole owner of all right, title and interest in and to the SYSTEM, and that through this AGREEMENT, DOUGLAS COUNTY is conveying only the limited access rights expressly contained in this AGREEMENT, but DOUGLAS COUNTY is not conveying to USER any right, title or interest in or to the SYSTEM or derivative works. 4 13. DISCLAIMER OF WARRANTY. The SYSTEM is provided by DOUGLAS COUNTY on an "AS IS, WHERE JS" basis, with no warranties whatsoever except as expressly set forth in this AGREEMENT. DOUGLAS COUNTY hereby disclaims all other warranties, express or implied, including the implied warranties of merchantability, fitness for a particular purpose, title, non-infringement of intellectual property rights and course of dealing. DOUGLAS COUNTY makes no warranties or representations regarding applicability of the SYSTEM to USER or compatibility of the SYSTEM with the infrastructure used by USER. DOUGLAS COUNTY makes no warranties as to the accuracy of the infonnation contained in the data repository or mapping information provided by any third party vendor. Without limiting the generality of the foregoing, DOUGLAS COUNTY has no obligation to indemnify or defend USER against any claims arising out of or related to the use of the SYSTEM including, but not limited to, infringement of intellectual property rights. 14. LIMITATIONS ON LIABILITY. In no event will DOUGLAS COUNTY be liable for any direct. indirect, incidental, special, consequential or punitive damages arising out of or related to this AGREEMENT regardless of the form of action, whether in contract, tort (including, but not limited to, negligence), strict product liability or otherwise even if DOUGLAS COUNTY is advised in advance of the possibility of the damages in question and even if such damages were foreseeable and even if USER'S remedies fail of their essential purpose. 15. NOTICE. Any notice required by this AGREEMENT shall be given, in writing. Any such notice shall be deemed given (a) on the date of delivery, if personally delivered (if a signed receipt is obtained); (b) by electronic transmission, provided electronic or other written confinnation of delivery is obtained; or (c) on the third business day following mailing by registered or certified mail, return receipt requested, provided proper postage was prepaid and the mail was addressed to the address set forth immediately below or such new address that is given to the other PARTY in accordance with this Section 14. A. To USER: Englewood Police Department Chief John Collins/ Commander Tim Englert 3615 South Elati Street Englewood, CO 80110 303-762-2448 B. To DOUGLAS COUNTY: Douglas County Government Sheriffs Office IT Department 4000 Justice Way Castle Rock, CO 80109 (303) 814-7006 s 16. APPLICABLE LAW. The PARTIES agree to comply with applicable federal, state and local statutes, charter provisions, ordinances, rules, regulations and standards as are in effect at the time this AGREEMENT is executed and as they may change from time to time. Any disputes arising under this AGREEMENT shall be brought exclusively in Douglas County District Court in the State of Colorado. USER hereby knowingly and voluntarily waives any objection to Douglas County, Colorado as an inconvenient forum and hereby consents to the exercise of personal jurisdiction by the Douglas County District Court in the State of Colorado. The PARTIES may mutually agree to informal resolution of disputes. Prior to filing litigation, the PARTIES shall discuss participation in alternative dispute resolution, which may include pre-suit mediation or settlement conferences. 17. NON-WAIVER. The PARTIES shall not be excused from complying with any provisions of this AGREEMENT by the failure or delay of any PARTY to insist upon or seek compliance with such provisions. 18. SEVERABILITY. Should any provision(s) of this AGREEMENT be determined to be illegal or unenforceable, such provision shall be modified to make it legal and enforceable to the fullest extent of the law. In the event modification would not make the provision legal and enforceable, such provision shall be deleted from this AGREEMENT and all remaining provisions of this AGREEMENT shall remain fully enforceable. Provided, however, with respect to the deleted provision, the PARTIES shall forthwith enter into good faith negotiations and proceed with due diligence to draft a term that will achieve the original intent of the PARTIES hereunder. 19. AMENDMENT. This AGREEMENT may be amended, modified, or changed, in whole or in part, only by written AGREEMENT executed by the PARTIES hereto. 20. ASSIGNABILITY; SUBLICENSING. USER shall not assign or sublicense its rights or delegate its duties under this AGREEMENT without the prior written consent of DOUGLAS COUNTY. 21. HEADINGS FOR CONVENIENCE. Headings and titles contained herein are intended for the convenience and reference of the PARTIES only and are not intended to combine, limit, or describe the scope or intent of any provision of this AGREEMENT. 22. GOVERNMENTAL IMMUNITY. The PARTIES hereto understand and agree that the PARTIES and their commissioners, officials, officers, directors, agents and employees, are relying on, and do not waive or intend to waive by any provisions of this AGREEMENT, the monetary limitations or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act, Section 24-10· IOI to 120, C.R.S., or otherwise available to the PARTIES. 23. OPEN RECORDS. The PARTIES expressly agree that if any request is made that subjects the subject matter of this AGREEMENT to disclosure pursuant to the Colorado Open Records Act, Section 24-72-201, C.R.S. et. seq., or the Colorado 6 Criminal Justice Records Action, Section 24-72-301, C.R.S. et. seq. then the data will be disclosed in printed, hardcopy form, and not in digital form, so long as the law allows this discretion. In the event it must be disclosed in digital fonn, the recipient shall sign a non-disclosure and non-use agreement related to the SYSTEM (which will be supplied by DOUGLAS COUNTY) prior to obtaining the digital infonnation. 24. THIRD PARTY BENEFICIARIES. DOUGLAS COUNTY does not intend by the Agreement to assume any contractual obligations lo anyone other than the USER, and the USER does not intend by the AGREEMENT to assume any contractual obligation to anyone other than DOUGLAS COUNTY. DOUGLAS COUNTY and USER do not intend that there be any third-party beneficiary to this AGREEMENT. 25. SURVIVAL: Where the context of this AGREEMENT reasonably requires such an interpretation. the provisions of this AGREEMENT shall survive termination. 26. EXECUTION. This AGREEMENT may be executed in counterparts. 7 HEREFORE, IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year first above written. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS, COLORADO: BY: ___________ _ Tony G. Spurlock Sheriff APPROVED AS TO LEGAL FORM: Kelly Dunnaway, Deputy County Attorney Date:. _______ _ Date: ______ _ 00D / ENGLEWOOD POLICE DEPARTMENT: Eric Keck City Manager 8 Date: 5 /4/27