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HomeMy WebLinkAboutItem 22 - Santa Ana Jail Inmate Communication and Digital Services Police Department www.santa-ana.org/pd Item # 22 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report September 20, 2022 TOPIC: Santa Ana Jail Inmate Communication and Digital Services AGENDA TITLE: Approve Agreement with Smart Communications Holdings, Inc. to Provide Inmate Communication and Digital Services (Non-General Fund) RECOMMENDED ACTION Authorize the City Manager to execute an agreement with Smart Communications Holdings, Inc. to provide inmate communication and digital services to the Santa Ana Jail for a five-year period, from November 1, 2022 through October 31, 2027, with an option for two, one-year extensions, in the amount of $650,000, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The State of California Board of State and Community Corrections requires all jails and correctional facilities within the state to provide reasonable access to a telephone beyond those calls which are required by Section 851.5 of the Penal Code. The Federal inmate housing agreements entered into by the City also require inmate access to telephones. Industry standards are increasingly leveraging technology to expand opportunities for inmate communication with friends and family through text and video platforms. The adoption of a tablet-based digital device network will markedly expand the City’s ability to deliver communication, educational, religious, and entertainment content to persons who are incarcerated. On March 23, 2022 the Police Department issued a request for proposals (RFP #22-049) for inmate communications and digital services. On April 19, 2022 a pre-proposal conference was conducted, and on May 20, 2022 the City received proposals from five firms, of which four were responsive. An evaluation committee reviewed and rated the proposals for the following criteria: •Company/Team Experience (15%) •Financial Proposal (30%) •Proposed Solution (35%) •Overall Benefit to the City (20%) The results of the RFP evaluation are as follows: Santa Ana Jail Inmate Communication and Digital Services September 20, 2022 Page 2 2 9 6 7 Proposer Location Score Smart Communications Seminole, FL 383 Inmate Calling Solutions San Antonio, TX 364 NCIC Longview, TX 335 ViaPath Technologies Falls Church, VA 309 400 Points Possible Smart Communications received the highest score as the most comprehensive solution. Their proposal specifies the lowest overall telephone calling rates at $0.07 per minute across all call types: local, long distance, and international. Smart Communications’ proposed video visitation rate of $0.15 per minute is 40 percent less than each of the other proposers, and the paid entertainment content rate of $0.01 per minute is 80 percent less than other proposals containing paid content. The five-year term specified in the City’s RFP and this agreement was designed to deliver the best possible final product at the lowest possible cost to both the City and persons incarcerated. Implementation of this project requires significant infrastructure improvements to the Jail facility, including network servers and other related hardware, Wi-Fi access points, installation of new conduits and facility-wide cabling, and as many as 400 tablet devices. Smart Communications’ proposal assigns 100 percent of these costs to the vendor, while also delivering services at the lowest overall cost to the inmate population. Smart Communications’ proposal provides for significant no-charge entertainment content, as well as weekly no-charge telephone calling, video visitation, and messaging allotments for all persons incarcerated. The proposal also includes outstanding educational programming opportunities, incorporating full-suite courses from publishers including Khan Academy and i-Pathways. Smart Communications’ educational software also supports the ability for our local education partner, Santa Ana College, to upload full courses including text content, video and multimedia content, and test and quizzes for delivery on-demand. All educational, legal, and religious content is provided without cost of any kind. The inmates housed in the Santa Ana Jail pay for calls beyond mandated allowances and any applicable fees or additional services. Therefore, the City does not anticipate any expenses to be incurred during the period of this agreement. The agreement includes provisions for the inmate communication services provider to pay the City a percentage of inmate gross billable revenue. Revenues from this agreement are estimated at $130,000 annually, based on average telephone usage for calendar years 2019 and 2020 and anticipated digital content engagement. This revenue is composed of the following: •60% of gross billed telephone revenue •50% of digital content purchases Santa Ana Jail Inmate Communication and Digital Services September 20, 2022 Page 3 2 9 6 7 The total anticipated revenue over the five-year term of the agreement is $650,000. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Revenues from this agreement will be deposited in the Jail Inmate Welfare Fund, Inmate Recovery account (no. 02314002-57403). Revenue estimates by fiscal year are as follows: Fiscal Year Accounting Unit – Account No.Fund Description Accounting Unit – Account No. Description Amount FY 22-23 02314002-57403 Inmate Welfare Fund Inmate Welfare Fund, Inmate Recovery $86,667 FY 23-24 02314002-57403 Inmate Welfare Fund Inmate Welfare Fund, Inmate Recovery $130,000 FY 24-25 02314002-57403 Inmate Welfare Fund Inmate Welfare Fund, Inmate Recovery $130,000 FY 25-26 02314002-57403 Inmate Welfare Fund Inmate Welfare Fund, Inmate Recovery $130,000 FY 26-27 02314002-57403 Inmate Welfare Fund Inmate Welfare Fund, Inmate Recovery $130,000 FY 27-28 02314002-57403 Inmate Welfare Fund Inmate Welfare Fund, Inmate Recovery $ 43,333 Total $650,000 These funds will be included in each respective fiscal year budget for anticipated expenditures that benefit the inmates housed at the Santa Ana Jail. EXHIBIT 1. Agreement with Smart Communications Submitted By: David Valentin, Police Chief Approved By: Kristine Ridge, City Manager Page 1 of 8 Master Services Agreement | City of Santa Ana Master Services Agreement This Master Services Agreement (this “Agreement”) is by and between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, hereinafter referred to as “Customer,” and Smart Communications Holding, Inc. and/or its designated subsidiary or assignee, with principal offices located at 10491 72nd Street, Seminole, FL 33777, hereinafter referred to as “Provider.” This Agreement supersedes any and all other agreements made between the Parties, written, oral or otherwise. Whereas, Customer desires that Provider install an inmate communications system(s) and provide inmate communications and maintenance services according to the terms and conditions in this Agreement, and according to the Schedules, which are incorporated by reference into this Agreement, and; Whereas, Provider agrees to install the inmate communications system(s) and provide inmate communications and maintenance services according to the terms and conditions in this Agreement, and according to the Schedules, which are incorporated by reference into this Agreement. Now therefore, in consideration of the mutual covenants and agreements hereinafter set forth, the Parties, intending to be legally bound, agree as follows: 1.Systems. This Agreement specifies the general terms and conditions under which Provider will perform certain inmate related services and systems (the “System(s)”) for the Customer. Additional terms and conditions with respect to the Systems will be specified in the Schedules entered into by the Parties and attached (the “Schedules”). The Schedules are incorporated into this Agreement and are subject to the terms and conditions of this Agreement. In the event of any conflict between this Agreement and a Schedule, the terms of the Schedule shall govern. 2.Use of Systems and Exclusivity. In exchange for Provider installing, providing, and supporting its System and inmate communication services throughout Customer’s Facility at no cost to Customer, Customer acknowledges, agrees, and grants to Provider the exclusive right to provide such services in Customer’s Facility. Provider shall have the exclusive right to install, maintain, and derive revenue from and through Provider’s inmate communication services and Systems including, without limitation, the related hardware and software, located in the Customer Facility as identified on the Schedules. Customer agrees that it will not resell, grant, or provide access to Provider’s services or System, directly or indirectly, to any third party unless agreed to by Provider in a separate written agreement. During and subject to the terms and conditions of this Agreement, Provider shall be the sole and exclusive provider of inmate telephone services (ITS) and all inmate communication services available on or provided by a tablet or kiosk system as set forth in the accompanying Schedule(s), including but not limited to video and data services (e.g., electronic video visitation, electronic messaging and email, texting, photo delivery, and electronic entertainment) and inmate software applications (e.g., electronic delivery of routine postal mail, electronic medical or general requests, electronic grievances, electronic law library, and electronic education). 3.Hardware and Software License. For the term of this Agreement, Provider grants Customer a non-exclusive, non- transferable license to access and use certain proprietary computer software and hardware products and materials in connection with our inmate services and Systems. Provider will provide free of charge all Software upgrades, modifications, and updates. All hardware upgrades, modifications and updates will be done at Provider’s sole discretion. Provider makes no representation or warranty as to the legality of monitoring or archiving such communications and activities. 4.Ownership. Smart Communications is and shall remain the owner of the equipment provided by Smart Communications whether or not physically attached to real estate. 5.License Restrictions: The Software is to be used solely in connection with Provider’s Services by Customer and inmates housed at Customer’s Facility in connection with Provider’s services and Systems. The Hardware is to be Exhibit 1 Page 2 of 8 Master Services Agreement | City of Santa Ana used solely by inmates housed at Customer’s Facility to access Provider’s services and Systems. Unless and only to the extent that this Agreement expressly permits, Customer must not: i. permit any parent, subsidiary, affiliated entity or third party to use the Hardware or Software; ii. rent, lease, lend, assign, sublicense, encumber or otherwise transfer or attempt to transfer the Hardware or Software or any portion thereof; iii. alter, create derivatives of, or modify the Hardware or Software in any way, or allow a third party to do so; iv. connect the Software or Hardware to any third-party products or services that were not approved of in writing by Provider; v. distribute or otherwise make the Hardware or Software or any password, key, or other access code for the Software available to any third party; vi. reverse engineer, decompile, or disassemble the Hardware or Software, or allow a third party to do so; vii. defeat or work around any access restrictions or encryption in the Software, or allow a third party to do so; viii. remove, minimize, block, or modify any titles, logos, trademarks, copyright and patent notices, digital watermarks, disclaimers, or other legal notices that are included in the Software, whether or not they are Provider’s or a third party′s; 6. Title. Provider shall have and retain all rights, title, and interest in the products and services provided to Customer. The Hardware, Software, Systems, networking, and cabling, including all modifications and updates of Software, shall at all times remain the sole and exclusive property of the Provider. Any trade secrets, methodology and processes of our services and Systems constitute proprietary information of Provider, regardless of any part or portion thereof is the subject of a valid copyright or patent. During the term of this agreement and for the time period(s) as stated in the Schedule for Systems, we will provide you access to the records. 7. Term. This Agreement shall commence on November 1, 2022 and shall continue for a period of five (5) years. After the original five (5) year term, this Agreement may be renewed for two (2) additional one (1) year terms upon written notification by Customer or as otherwise agreed by the Parties. The parties agree that the terms and conditions herein shall govern for so long as Provider continues to provide its system and services. 8. Limitation of Liability. To the maximum extent permitted by applicable law, Provider shall indemnify and hold harmless Customer, his agents, servants and employees from any and all claims, actions, lawsuits, judgments or liabilities of any kind whatsoever deriving from negligent acts or omissions of the Provider, its agents or sub- contractors. Each Party agrees that it shall be solely responsible for the negligent or wrongful acts of its own employees. However, nothing contained herein shall constitute a waiver by Customer of its sovereign immunity or other applicable State Statutes. Notwithstanding anything to the contrary in this Agreement or Schedules, in no event will Provider’s liabilities under this agreement, whether under contract law, tort law, warranty, or otherwise, exceed the total amount of revenue received by Provider pursuant to this agreement, during the twelve (12) month period before the date the claim arose. 9. Confidential Information and Non-Disclosure. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the party’s services and know-how, technology, techniques, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing party (the “Disclosing Party”). As a condition to the receipt of the Confidential Information from the Disclosing Party, the receiving party (the “Receiving Party”) shall, at all times during and after the term of this Agreement (i) not disclose in any manner, directly or indirectly, to any third party any portion of the Confidential Information; (ii) not use the Confidential Information in any fashion except to perform its duties hereunder or with the Disclosing Party's express prior written consent; (iii) disclose the Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the Receiving Party's internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the Page 3 of 8 Master Services Agreement | City of Santa Ana same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized disclosure or use of the Confidential Information. The Receiving Party shall cooperate and assist the Disclosing Party in preventing or remedying any such unauthorized use or disclosure. The term “Confidential Information” does not include, and the obligations and undertakings set out in this section do not apply to: (a) Information which now is in the public domain or publicly known at the time of disclosure or hereafter comes into the public domain or generally known through no fault of the Receiving Party, otherwise than by reason of breach of this Agreement; (b) Information the disclosure of which is requested or required by law, regulation, court order or a regulatory agency, provided that, prompt notice of such requested disclosure shall be given to the Disclosing Party, if legally permitted, so that Disclosing Party may seek appropriate remedy to prevent such disclosure or waive compliance with the provisions of this Agreement and the Receiving Party, its directors, officers, employees, agents and advisers shall reasonably co-operate with the Disclosing Party, at the Disclosing Party’s sole cost and expense, if the Disclosing Party elects to challenge the validity of such requirement and/or take such steps as the Disclosing Party may reasonably require to avoid or limit such disclosure; (c) Information that was previously known to the Receiving Party free of any obligation of confidentiality; (d) Information that is independently developed by the Receiving Party without reference to or use of the Confidential Information; or (e) Information that is disclosed to the Receiving Party by a third party not under or in violation of, as the case may be, any confidentiality undertaking to the Disclosing Party. Subsections (a) through (e) of this paragraph notwithstanding, the parties agree that the technology behind the Providers Services and Systems is Confidential Information and is a trade secret of Provider. 10. Default and Termination. If either party defaults in the performance of any obligation under this agreement, then the non-defaulting Party must give written notice to the defaulting Party specifically describing the nature of default and clearly notifying the defaulting party that the written notice is being provided pursuant to this provision. The defaulting Party shall have thirty (30) days after receipt of notice of default to cure. If it is not reasonable to cure the default within 30 days, then the right to cure period shall be extended to a reasonable cure period as long as the defaulting Party has made good faith attempts to cure the default. Upon termination of this Agreement, Provider shall remove all hardware and software Systems except for the cabling and conduit which shall become the property of the Customer. Provider shall have the right to immediately terminate this Agreement if Customer breaches the Confidentiality or Non-Disclosure provisions of this Agreement. 11. Insurance. Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the Customer requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Entity. Page 4 of 8 Master Services Agreement | City of Santa Ana Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The Entity, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). Primary Coverage For any claims related to this contract, the Consultant’s insurance coverage shall be primary insurance primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. Notice of Cancellation Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the Entity. Waiver of Subrogation Consultant hereby grants to Customer a waiver of any right to subrogation which any insurer of said Consultant may acquire against the Customer by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Customer has received a waiver of subrogation endorsement from the insurer. Self-Insured Retentions Self-insured retentions must be declared to and approved by the Entity. The Customer may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or Entity. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the Entity. Claims Made Policies If any of the required policies provide coverage on a claims-made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work. Verification of Coverage Page 5 of 8 Master Services Agreement | City of Santa Ana Consultant shall furnish the Customer with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Customer before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The Customer reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Subcontractors Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that Customer is an additional insured on insurance required from subcontractors. Special Risks or Circumstances Customer reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 12. Employees. Provider represents that it has, or will secure at its own expense, all personnel required in performing its obligations under this Agreement. All of the services required hereunder will be performed by the Provider or under its supervision and all personnel engaged in the work shall be fully qualified to perform such services. Provider and any subcontractors used in the performance of the responsibilities listed herein must maintain a drug-free workplace policy. Customer acknowledges that Provider is an independent contractor and nothing in this Agreement is intended nor shall be construed to create an agency relationship, and employer/employee relationship, a joint venture relationship or any other relationship allowing Customer to exercise control or discretion over the manner by which Provider performs hereunder. Provider expressly agrees that it shall be solely responsible for supervising its employees, that it shall comply with all rules, regulations, orders, standards and interpretations promulgated pursuant to the OSHA Act of 1970, including but not limited to training, recordkeeping, providing personal protective equipment, lock/tag out procedures, material safety data sheets and labeling. Provider certifies that neither it nor any subcontractors used to accomplish its obligations hereunder, shall employ unauthorized aliens. Provider certifies that in accordance with the provisions of Title VII of the 1968 Civil Rights Act as amended by the Equal Employment Opportunity Act of 1972 and Executive Order 11914, that neither it nor any subcontractors used to accomplish its obligations hereunder discriminate on the basis of race, color, sex, religion, age, national origin or disability in their employment practices. Miscellaneous 13. Warranty Against Contingent Fees. Provider warrants that no person or selling agency has been employed or retained to solicit this contract upon an agreement of understanding for commission, percentage, brokerage or contingency, except bona fide employees or selling agents maintained by the Provider for the purpose of securing business. 14. Subcontracts. Provider shall be allowed to use subcontractors for the purpose of completing the provisions of this Agreement. 15. Provider Personnel. All Provider personnel being permitted to work in the Customer Jail Facility will be subject to a security/background check by the Office of the Sheriff. 16. Provider Cooperation. Provider shall, at all times observe and comply with all Federal, State, and local municipal laws, ordinances, rules and regulations in any way affecting the Agreement. The Provider shall maintain regular communications with Customer, or its designees, and shall actively cooperate in all matters pertaining to this Agreement. 17. Public Information. Neither the Provider nor the Customer shall publish any findings based on data obtained from the operation of this agreement without the prior consent of the other party, whose written consent shall not be unreasonably withheld. Page 6 of 8 Master Services Agreement | City of Santa Ana 18. Permits and Licenses. All permits and licenses required by Federal, State, local laws, rules, and regulations necessary for the implementation of the work undertaken by the Provider pursuant to the Agreement shall be served and paid for by the Provider. It is the responsibility of the Provider to have and maintain the appropriate certificate(s) valid for work to be performed and valid for the jurisdiction in which the work is to be performed for all persons working on the job for whom a certificate is required. 19. Third-party Rights. The rights, obligations and duties contained in this Agreement shall exist exclusively between the Parties. The Parties expressly agree and intend that they alone shall have the exclusive rights to seek legal or equitable enforcement, remedy, injunctive relief or to bring a breach of Agreement action. The Parties do not intend to create, nor shall this Agreement be construed to create in any other individual or entity the status of a third-party beneficiary. 20. Waiver of Breach. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof. 21. Compliance with Laws. Provider shall comply with all Federal, State and local laws, rules, and regulations applicable to the services or payments for services under this Agreement. 22. Governing Law. The parties mutually consent to the jurisdiction of and agree that any litigation arising hereunder shall be brought and completed in Orange County, California and governed by the laws of the state of California. 23. Attorney Fees. In the event of litigation concerning this Agreement, the Parties shall each be responsible for their own attorney’s fees and costs. 24. Completeness of Agreement. This Agreement, together with any additional or supplementary Schedules or documents incorporated herein by specific reference contain all the terms and conditions agreed upon by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement or any part thereof shall have any validity or bind any of the Parties hereto. This Agreement may be amended or revised only in writing and signed by all the parties. 25. Force Majeure. Provider will not be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder for any reason beyond its control, including without limitations, strikes, inmate disturbances, failure of Customer to provide proper security services, acts of God, civil or military authority, acts of public enemy, war, terrorism, accidents, fires, explosions, earthquakes, floods, or any similar cause beyond the reasonable control of either Party. 26. Assignment. Provider may assign this Agreement or any interest herein at any time to any parent, successor, or subsidiary with prior written notice to Customer. 27. Severability. In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of the Agreement which shall remain in full force and effect and enforceable in accordance with its terms. 28. Matters to be Disregarded. The titles of the several sections, subsections and paragraphs set for in this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of the provisions of this Agreement. 29. Interpretation. The language in this Agreement is to be construed according to its plain meaning and not strictly for or against either party. The parties have reviewed this Agreement and no ambiguities are known to exist; however, to the extent any ambiguity is later discovered, any rule that such ambiguity is to be resolved for or against either party does not apply. 30. Notices. Any notices, demands, payments or reports required by this Agreement shall be in writing and sufficient Page 7 of 8 Master Services Agreement | City of Santa Ana if sent by the parties hereto via registered or certified United States mail, postage prepaid, to the notice addresses below: Customer (City of Santa Ana): Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Provider (Smart Communications Holding, Inc.): Attn: Jonathan Logan Smart Communications 10491 72nd St. Seminole, FL 33777 Courtesy Copy to: Santa Ana Police Department Attn: Chief of Police 60 Civic Center Plaza Santa Ana, CA 92702 31. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute the same Agreement. Any signature page of any such counterpart, or any telecopy or other electronic facsimile thereof, may be attached or appended to any other counterpart to complete a fully executed counterpart of this Agreement, and any telecopy or other electronic transmission of a signature shall be deemed an original and shall bind the party who made such signature. 32. Authority. Each Party represents and warrants that it possesses or has obtained the authority to enter into this Agreement, and that the individual signing on its behalf likewise has authority to do so. Page 8 of 8 Master Services Agreement | City of Santa Ana IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by the duly authorized Officers and Agents and have set their hands and seals hereto as of the day and year written below. Customer: City of Santa Ana By: _________________________________ Name: _______________________________ Title: ________________________________ Date: ________________________________ Email: _______________________________ Provider: Smart Communications Holding, Inc. By: ______________________________ Name: Jon Logan Title: CEO Date: _____________________________ Email: jon.logan@smartcommunications.us September 2, 2022 See Attached Signature Page Page 1 of 9 Schedule of Services Agreement | City of Santa Ana Schedule of Services Agreement This Schedule is between the the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, hereinafter referred to as “Customer,” and Smart Communications Holding, Inc. and/or its designated subsidiary or assignee, with principal offices located at 10491 72nd Street, Seminole, FL 33777, hereinafter referred to as “Provider.” This Schedule is part of and governed by the Master Service Agreement, the “Agreement”, executed by the Parties. The terms and conditions of the Agreement are incorporated herein by reference. The Customer’s Facility Name and address is: City of Santa Ana Jail, 62 Civic Center Plaza, Santa Ana, CA 92701. Commission Payments shall be remitted to the following: Payee: City of Santa Ana Address: 62 Civic Center Plaza, Santa Ana, CA 92701 Provider and Customer agree to the following terms and conditions in connection with Provider’s installation and provision of inmate communication services to Customer’s Facility: Inmate Telephone System 1.Customer grants to Provider the exclusive right to install and maintain Inmate Telephone Services within and throughout Facility, including for any future expansion of telephone service to buildings or locations under control of Facility, during the term of this Agreement. 2.Provider will make available to each inmate at Customer’s Facility one free phone call per week, up to fifteen (15)minutes in length, to satisfy the needs of indigent inmates. 3.Thereafter, Provider shall establish rates for telephone services as set forth below. INMATE TELEPHONE SYSTEM PER MINUTE CALL RATES Call Type Collect PrePaid Collect PrePaid Debit Local $0.07 $0.07 $0.07 IntraState $0.07 $0.07 $0.07 InterState $0.07 $0.07 $0.07 International $0.07 $0.07 $0.07 4.This Agreement includes all other premises, whether now existing (e.g., if a different vendor has a contract and equipment at such premises, this clause applies at the earliest termination opportunity) or subsequently acquired, under the control of Customer within Provider’s service areas. Customer will advise Provider in writing, of newly opened, acquired, or available premises, promptly, and Provider can evaluate installation of its telephone services at these premises. 5.In consideration of the compensation paid to Customer under this Agreement, Customer expressly waives carrier selection rights, where applicable, and Provider expressly reserves the right to select and/or contract for the local, Page 2 of 9 Schedule of Services Agreement | City of Santa Ana intraLATA and interLATA carrier selections for the telephones subject to this Agreement and intended for placement at Customer locations. Smart Communications’ Responsibilities (Inmate Telephone System) 6. Provider’s telephone services and system are provided by way of Provider’s Smart-EVO™ ITS terminals, which will be installed in quantities and at locations that are mutually agreed upon by both parties. 7. Provider shall service and maintain its telephone system and Smart-EVO™ ITS terminals at Provider’s expense, except as otherwise agreed upon herein. 8. Provider shall comply with the Americans with Disabilities Act (ADA) for all equipment it provides. 9. Provider shall provide the Customer an annual review of revenue performance, facility service needs, and expansion requirements and will discuss with the Customer the appropriate action to be taken by Provider at the Customer’s request. Commissions and Payments 10. Provider agrees to pay Customer certain commissions collected from its inmate phone system. Said commission is based upon Customer’s grant to Provider exclusivity for the services described herein, including secure two-way electronic messaging, video visitation, and entertainment. 11. Provider shall make monthly commission payments to Customer in the amount of sixty percent (60%) of revenues generated from all phone calls made on its Inmate Telephone System, regardless of call type or call rate. Provider shall additionally pay Customer 100% of revenue generated from inbound voicemail messages, which are provided at a fixed rate of $1.00 per voicemail. 12. Starting the first month after Provider’s system and services are installed and live, Provider will pay Customer said commission payments on or before the 30th day of the month. 13. Commission schedule is based on rate caps as of the time Provider's proposal was made. To the extent the Federal Communications Commission (FCC) or other governing body changes allowable rates, Provider shall have the right to renegotiate commissions, which the parties agree to do in good faith. Customer’s Responsibilities (Inmate Phone System) 14. Customer agrees to provide adequate space for installation of Provider’s Smart-EVO™ ITS terminals, and easy accessibility for inmate use during the normal operating hours. In the event Customer is not the owner of the premises, Customer shall, where necessary, obtain permission from the building owner or owner’s agent for the placement of the ITS terminals, and shall be responsible for any fees for use of required riser cable and electric power. 15. Customer agrees to maintain the area around the ITS terminals and ensure safe and ready access by inmates. 16. Customer agrees to allow Provider access to perform maintenance during the established hours of accessibility as jointly agreed by the parties, except when access must be denied to ensure the safety of Provider service personnel and/or to maintain institutional control. 17. Customer agrees to allow Provider, with prior written approval of Customer, access to and use of house cable and inside wire at no cost, in order to install and provide telephone service. Any new house cable or inside wire required during the contract term will be at the sole expense of the Provider, unless otherwise negotiated with Customer. Page 3 of 9 Schedule of Services Agreement | City of Santa Ana 18. Customer agrees that any relocation, expansion, addition, or removal of ITS hardware, equipment, or terminals, which would result in extraordinary expenses must be agreed to by Provider in advance of the cost being incurred or alternately, the cost be paid by Customer. 19. Customer agrees to exercise reasonable and ordinary care to prevent the loss through theft or damage to the ITS terminals and equipment from any source. 20. Customer agrees to, at its option, purchase and provide enclosures at its own expense for Telephones. In the event Customer elects to provide its own enclosures, Customer shall be responsible for installation and maintenance of said enclosures. 21. Customer represents and warrants that Provider’s ITS system will be installed on property owned by the Customer, or if Customer is not the owner of the premises, Customer has obtained permission from the Facility’s owner or owner’s agent. SmartTablet™ and Secure Network 22. The SmartTablet™ system and its entire supporting infrastructure are provided at no cost to Customer or inmates. 23. Provider will furnish the proprietary SmartTablet™ on an initial 1:2 inmate to tablet ratio based on the Average Daily Population (“ADP”). Thereafter, usage will be monitored and increased for a given housing area if usage rates for that area exceed 40% on average. Sufficient reserve tablets shall also be provided. Customer shall determine which inmates have access to the SmartTablets™. 24. The SmartTablet™ is a custom, wireless, ruggedized and correctional grade tablet of our custom specifications that will connect to our secure network. 25. The SmartTablet™ software operating system and applications are all custom-compiled for a corrections environment to ensure that only the minimum operating system components and applications are present. The inmate only has access to applications that are approved for their use, and the operating system is only allowed to connect to our own secure wireless network within the facility. 26. The network itself is designed to facilitate applications within a corrections environment. We utilize a deny-by- default policy on all traffic, so nothing may traverse the network unless specifically allowed and enabled. We utilize a defense-in-depth strategy which employs many layers of security. If any one layer of security is breached, there are many others to provide continuing protection. Distribution and Refurbishment Plan (SmartTablets™) 27. We will provide a tablet charging station and “home base” within each housing unit within the facility. These home bases will be permanently installed into a housing area (e.g. wall mounted). Each home base provides the necessary connections for charging the tablets, as well as a convenient storage location to ensure all tablets are accounted for during non-usage times. 28. Each tablet is assigned to a specific housing area and will only allow inmates within that housing area to sign in and use a tablet. Individual tablets are not assigned to specific inmates. Any inmate in a given housing unit may use any tablet that is assigned to that housing unit. If a tablet that an inmate is using stops working, they can return it to a deputy for maintenance, and then take a different tablet and sign on and gain full access to their account and content. Provider will provide to the Customer a sufficient number of extra SmartTablets™ so that the available number of SmartTablets™ will always meet the approved ratio. In the event a tablet stops working, no longer holds a charge, is damaged, or is otherwise in need of service, facility staff can replace the malfunctioning tablet with a new Page 4 of 9 Schedule of Services Agreement | City of Santa Ana working SmartTablet™. We will provide pickup and delivery of malfunctioning and replacement SmartTablets™ at no charge to the Sheriff’s Office. Damage (SmartTablets™) 29. The tablets provided are ruggedized for use in a correctional setting. They have been drop tested from two stories high to a concrete floor without damage; however, if an inmate is determined, they can be damaged enough to require repair. Should this occur, the facility will be required to fill out a damage report form. We will seek restitution from the inmate with the assistance of your agency. SmartInmate™ Electronic Messaging 30. Provider will provide a fully functional electronic messaging system for the inmates of the Customer’s Facility (SmartInmate™). Provider is responsible for providing and installing all of the hardware, the software to include the operating systems and application software, and all networking requirements needed for operation of the system. Provider shall be exclusively entitled to all revenue derived from electronic messaging and photo delivery. 31. Provider will provide at no cost to Customer the labor for the installation of the SmartInmate™ electronic messaging system. 32. Provider will provide at no cost to Customer the labor, hardware, and software needed for the continued operating, maintaining, and networking of the electronic messaging system. 33. Provider is responsible for all the costs and future costs associated with any modification, reconfiguration, or upgrade of the electronic messaging system at the Customer’s Facility. These costs do not include the costs of the actual electrical power. 34. Provider will provide each inmate at Customer’s Facility with credits for two (2) messages per week at no charge, to satisfy the needs of indigent inmates. 35. Customer shall have the capability of monitoring and reviewing all electronic messages and attachments sent through the electronic messaging system, except those messages deemed to be privileged under law between attorney and client. Further, Provider will maintain a record of all electronic messages sent through the electronic messaging system for a period of seven (7) years from the time the message is sent. 36. Friends and Family can access the electronic messaging and photo delivery system via the SmartInmate.com website. 37. Electronic Messaging. Each email message is billed at fifty cents ($0.50), which corresponds to 50 credits. 38. Photo Delivery Service. Each approved photo is billed at one dollar ($1.00), which corresponds to 100 credits. Customer’s Responsibilities (SmartInmate™ Electronic Messaging) 39. Customer will provide access to the Customer Jail Facilities and space within the Facilities, subject to operational security requirements, for Provider to install, network, and maintain the electronic messaging system. Emergency access to the system will be granted as needed Monday through Friday 8:00 am to 4:00 pm. Non- emergency access will be granted within twenty-four (24) hour notice by Provider. 40. Customer will include information regarding the SmartInmate™ messaging system in Facility’s Inmate Handbook and in all other areas where information on the Inmate Telephone System is located. Page 5 of 9 Schedule of Services Agreement | City of Santa Ana 41. Customer will provide information regarding the SmartInmate™ messaging system in at least one location next to the inmate mailing address on Customer’s website, with a link to the SmartInmate.com website. 42. Upon completion of installation and appropriate system testing, Customer will allow the electronic messaging to go live within forty-eight (48) hours’ notice of system availability. 43. Customer will provide a list electronically twice each day of all inmates residing in the Customer Jail Facilities and their current housing assignments. Provider will use this listing to ensure that each inmate is authorized to use only those kiosks and tablets appropriate to their housing assignment. 44. Customer will give prompt notice, in writing, to Provider of any trouble or irregularity in the functioning of the electronic messaging system, as a whole. Patented MailGuard Postal Mail Elimination® System 45. Provider is the exclusive licensee of MailGuard®, the patented postal mail elimination system covered by U.S. Patent No. 1,0291,617 and multiple pending patent applications. 46. Provider shall provide its patented MailGuard Postal Mail Elimination® system at no cost to Customer. Provider’s MailGuard® service converts regular incoming postal mail into an electronic document that is delivered to the inmate recipient via the SmartTablets™ or SmartKiosk™ within the Customer’s Facility. 47. Provider shall provide all the equipment and support services to operate the MailGuard® system and transmit incoming routine postal mail into an electronic document to be delivered to the inmate on the SmartTablets™ or SmartKiosk™ at no cost to Customer. 48. For purposes of this agreement, “routine mail” means all regular incoming correspondence between inmates, family and friends and excludes all legal mail, packages, books, magazines, periodicals and religious mail. All legal mail, packages, books, magazines, or other non-routine inmate mail will still be sent to Customer’s Facility for delivery. 49. MailGuard® will only integrate with and transmit incoming routine mail to the SmartTablets™ or SmartKiosk™. 50. Provider is responsible for all the future costs associated with any modification, reconfiguration, or upgrade of the MailGuard® system at the Customer Jail Facilities. These costs do not include the costs of the actual electrical power. 51. MailGuard® shall become the Inmates’ designated Agent to process and electronically deliver incoming routine inmate mail pursuant to Customer’s mail policy which shall promote the intent of this Agreement. 52. Customer will instruct and publish on its website that all incoming routine mail must be sent to the designated Post Office Box for electronic delivery via the MailGuard® system. 53. Provider shall be solely responsible for the cost of maintaining the Post Office Box designated by the Customer for incoming routine mail to be sent. 54. Provider will retrieve incoming routine mail from the designated Post Office Box and process and transmit that mail in an expeditious manner. 55. The MailGuard® public website will allow inmates to log into their account and retrieve electronic copies of their processed incoming routine mail for thirty (30) days from the date of their release from the Customer’s Facility. Page 6 of 9 Schedule of Services Agreement | City of Santa Ana 56. Provider will maintain electronic records for a period of seven (7) years from the date of the inmate’s release from the Customer’s Facility. During the term of this Agreement and upon request, we will provide Customer with electronic copies of the requested record for the purpose of inspecting, examining, and auditing the Provider’s records directly relevant to Customer’s Facility. 57. MailGuard® will provide Customer with the capability of monitoring and reviewing all electronic mail sent through the MailGuard® system, except those messages deemed to be privileged under law between attorney and client. Customer’s Responsibilities (MailGuard®) 58. Customer shall be responsible for informing inmates and inmates’ friends and family that all routine correspondence must be sent to the designated MailGuard® Post Office Box. Customer will include information regarding the MailGuard® system in the Inmate Handbook and in all other areas where information regarding the Inmate Mail Policy and Procedures are located. 59. Customer will provide information regarding Customer’s incoming postal mail policy, the MailGuard® system and the MailGuard® procedure for processing and/or disposing of all incoming mail and pictures in at least one location next to the inmate mailing address on the Customer’s website and very clearly state that all incoming routine mail MUST be mailed to the MailGuard® designated Post Office Box. 60. Customer will instruct on its website that all incoming routine mail must be sent to the designated Post Office Box for electronic delivery via the MailGuard® system and display information regarding the Customer’s incoming postal mail policy, the MailGuard® system and the MailGuard® procedure for processing and/or disposing of all incoming mail and pictures. 61. Should the Customer receive incoming routine mail instead of the designated Post Office Box, the Customer will be responsible for the delivery of said mail to MailGuard® for processing. 62. Upon completion of installation and appropriate system testing, Customer will allow the MailGuard® system to go live within forty-eight (48) hours’ notice of system availability. 63. Customer will provide a list electronically twice each day of all inmates residing in the Customer Jail Facilities and their current housing assignments. 64. Customer will give prompt notice in writing to Provider of any trouble or irregularity in the functioning of the MailGuard® system. Patented MailGuard Legal™ System 65. Provider is the exclusive licensee of MailGuard Legal™, the patented postal mail elimination system for legal mail covered by U.S. Patent No. 10,659,630 and other pending patent applications. 66. Provider will provide, install, and maintain its patented MailGuard Legal™ Mail system, which will include a sufficient number of MailGuard Legal™ Mail Scanning Carts to handle the volume of legally privileged mail or other mail deemed to be legal mail (the “Legal Mail”) to be processed by the Facility. 67. Customer acknowledges and agrees that Legal Mail must be opened in the presence of the inmate. 68. Provider will install and maintain its proprietary software and the additional infrastructure necessary to operate its patented MailGuard LegalTM system, at no cost to Customer. 69. The Legal Mail may be scanned in the presence of the inmate for electronic delivery to the inmate or printed to hard copy for physical delivery to the inmate, in accordance with Provider’s patented MailGuard LegalTM Page 7 of 9 Schedule of Services Agreement | City of Santa Ana system. 70. Customer understands and agrees that the MailGuard LegalTM system does not allow for any electronic copies of Legal Mail to be monitored, reviewed, or investigated. 71. Customer agrees to adhere to all applicable laws in order to maintain the privileged nature of privileged communications while using or supervising the inmates’ use of Provider’s patented MailGuard LegalTM Mail system. Video Visitation 72. Provider will provide at no cost to Customer a fully functional video visitation system for the inmates of Customer’s Facility. Provider is responsible for providing all hardware (i.e. tablets and kiosks), the software (including the operating systems and application software), and all networking requirements needed for operation of the system. Provider shall have the exclusive right over any other vendor to provide the services of and to derive revenue from remote video visitation. 73. Provider’s video visitation system will be accessible to inmates via video visitation kiosks that will be installed in quantities and locations as agreed by the Parties, including onsite video visitation (public) kiosks and/or lobby kiosks. 74. Provider will provide at no cost to Customer the labor, hardware, and software needed for the continued operating, maintaining, and networking of the video visitation system, including any public or lobby kiosks. 75. Provider is responsible for all the costs and future costs associated with any modification, reconfiguration, or upgrade of the video visitation system at Customer’s Facility. These costs do not include the costs of the actual electrical power. 76. Provider will provide Customer with the capability of monitoring the video visitations, except those visitations deemed to be privileged under law between attorney and client. Provider will maintain a record of all parties of the video visitation system for a period of seven (7) years from the time of the visitation. 77. Friends and Family can access and purchase and schedule the video visitation sessions via the Smartjailmail.com website. 78. Remote video visitation will be made available to inmates 7 days a week, in keeping with the same hours and time availability of the inmate phone system. 79. Onsite video visitations shall be provided at no change. Remote video visitations with an attorney shall also be provided at no charge. In addition, Provider will make available to each inmate at Customer’s Facility one free remote video visitation session per week, up to fifteen (15) minutes in length, to satisfy the needs of indigent inmates. 80. Thereafter, remote video visitation sessions (scheduled or on demand) will be billed at $0.15 per minute, subject to change by mutual agreement of the parties. 81. Provider shall pay Customer a commission in the amount of fifty percent (50%) of the revenue collected from use of its remote video visitation system. 82. Provider shall pay commissions to Customer on a monthly basis, no later than thirty (30) calendar days from the end of each calendar month for which the remote video visitation services are provided. Page 8 of 9 Schedule of Services Agreement | City of Santa Ana Grievances, General and Medical Requests 83. We shall provide at no cost to the Customer and Inmate electronic general and medical requests as well as well as electronic grievance forms via the SmartTablet™ or SmartKiosk™. 84. Our System presents Inmates with a list of available forms, and once a form has been selected and submitted, it is automatically routed to the appropriate person or department for processing. Law Library 85. Provider shall provide access to a law library at no cost via SmartTablet™ or SmartKiosk™ devices. The law library provides access to Federal and State statutes and case law, as well as a legal dictionary, practice manual, and other legal aides to assist inmates with researching material appropriate for their case. Electronic Education & Entertainment 86. Provider will provide access to its extensive SmartEd™ educational platform via the SmartTablet™, where a full suite of Educational Programs can be made available. 87. Provider shall provide access to its SmartEntertainment™ platform via the SmartTablet™ for streaming basic content (free) and premium content (at a rate of one cent ($.01) per minute). 88. Provider shall pay Customer a commission in the amount of fifty percent (50%) of revenue collected from streaming of premium entertainment content. 89. Provider shall pay commissions to Customer on a monthly basis, no later than thirty (30) calendar days from the end of each calendar month for which the entertainment services are provided. Commissary Hosting and Integration 90. At Customer’s request, Provider will host Customer’s commissary vendor’s menu on Provider’s system, at no cost to Customer. 91. At Customer’s request, Provider will integrate with Customer’s jail management system (JMS) at no cost to Customer. Customer Training 92. Upon the installation of Provider’s system, Provider shall provide Customer staff with extensive training for all services and features available to Customer pursuant to this Agreement. In addition, Provider will provide refresher or new training sessions to Customer staff as necessary, including as new staff is hired by Customer. THIS PORTION INTENTIONALLY LEFT BLANK Page 9 of 9 Schedule of Services Agreement | City of Santa Ana IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by the duly authorized Officers and Agents and have set their hands and seals hereto as of the day and year written below. Customer: City of Santa Ana By: _________________________________ Name: _______________________________ Title: ________________________________ Date: ________________________________ Provider: Smart Communications Holding, Inc. By: ______________________________ Name: Jon Logan Title: CEO Date: _____________________________September 2, 2022 See Attached Signature Page IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. CITY OF SANTA ANA _______________________ KRISTINE RIDGE City Manager ATTEST: _______________________ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: _______________________ TAMARA BOGOSIAN Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: ________________________ DAVID VALENTIN Chief of Police Signature Page - Smart Communications Master Services Agreement and Schedule of Services