CONTRACT 6963 Service AgreementAgreement No. 6963
SOFTWARE SERVICES AGREEMENT
BETWEEN THE CITY OF EL SEGUNDO
AND
HigherGround,, Inc. _
This AGREEMENT is entered into this _15th day of _May_, 20_24_, by and
between the CITY OF EL SEGUNDO, a municipal corporation and general law city
("CITY") and [HigherGraund, Inc.], a_[ A CALIFORNIA CORPORATION]_
("CONSULTANT").
1. CONSIDERATION,
A. As partial consideration, CONSULTANT agrees to perform the scope of
services attached as Exhibit "A," and incorporated by reference
("SERVICES"). The SERVICES include installing and maintaining a
software program for various tasks associated with
Live911 _("SOFTWARE").
B. As additional consideration, CONSULTANT and CITY agree to abide by
the terms and conditions contained in this Agreement;
C. As additional consideration, CITY will pay CONSULTANT the
compensation set forth in Exhibit "A," but in no event more than
$_15,000
D. CITY will not be liable for any costs or expenses exceeding the sum paid
to CONSULTANT pursuant to Section 1(C) unless otherwise agreed to by
the Parties and by written amendment to this Agreement.
2. TERM. The term of this Agreement will be from July 1, 2024 to
June 30, 2025 Unless otherwise determined by written amendment
between the parties, this Agreement will terminate in the following instances:
3.
A. Completion of the work specified in Exhibit "A";
A. Termination as stated in Section 8.
4. "SELF-HELP" AND "MALICIOUS" CODES PROHIBITED.
A. CONSULTANT understands and agrees that CONSULTANT's use of any
"self-help" or "malicious" codes, as defined by this Section, is prohibited
and constitutes an "unfair business practice" as defined by California law.
Notwithstanding any other provision of this Agreement that limits
CONSULTANT's liability, CONSULTANT will be fully liable for all penalties
and damages arising from use of a self-help or malicious code.
Agreement No. 6963
Rev 4/4/24
B. The software provided by CONSULTANT to CITY and payment for
such software by CITY to CONSULTANT is for an annual software
license. The software is designed to stop working at the end of the period
if the annual payment is not made for the software's license renewal.
With this understanding, there will not be any additional code to stop the
software from working or any "Self-help code". "Self-help code" means
any back -door, time -bomb, drop -dead, time-out, lock -up, slow -down, data
freezing, logic bombs, or other software routine, code, devices, techniques
intended to disable, slow, prevent operation of, or otherwise interfere with
or change any operation of any computer system, software or other
property automatically with the passage of time or under the prior
instruction, triggering event or control of someone other than Client.
C. "Malicious Code" means any virus, "spyware," "Trojan horse," "worm,"
"Easter egg," "cancelbot," "trapdoor," or other unapproved or malicious
software routine, code, command, device, technique, or instruction or
other contaminant intended to
i. Permit unauthorized access to, detection of, modification of, or
monitoring of any code, system, or data;
ii. Alter, supplement, disable, erase, limit, threaten, infect, assault,
vandalize, defraud, disrupt, damage, disable, shut down or delete,
threaten, slow or otherwise inhibit the functioning of, or otherwise
harm any of the code, documentation or data or any computer
system, software or other property;
iii. Render any data irretrievable, modified, or disrupted so as to be
unreliable in any regard;
iv. Perform any other unauthorized action, or prevent, limit, condition
or inhibit performance of authorized actions or any function
including, without limitation, to its security or end user data.
5. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying
with any and all applicable Federal, State, County, and Municipal laws and regulations
and the conditions of any required licenses and permits before entering into this
Agreement. Such compliance will be at CONSULTANT's sole cost and without any
increase in price or time on account of such compliance, regardless of whether
compliance would require additional labor, equipment, and/or materials not expressly
provided for in the Agreement or CONSULTANT's proposal.
6. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
2
Agreement No. 6963
Rev 4/4/24
i. Indemnigcation for Professional Services. CONSULTANT will
save harmless and indemnify and at CITY's request reimburse
defense costs for CITY and all its officers, volunteers,
employees and representatives from and against any and all
suits, actions, or claims,, of any character whatever, brought
for, or on account of, any injuries or damages sustained by
any person or property resulting or arising from any negligent
or wrongful act, error or omission by CONSULTANT or any of
CONSULTANT's officers, agents, employees, or
representatives, in the performance of this Agreement, except
for such loss or damage arising from CITY's sole negligence
or willful misconduct.
i. Indemnification for other Damages. CONSULTANT indemnifies
and holds CITY harmless from and against any claim, action,
damages, costs (including, without limitation, attorney's fees),
injuries, or liability, arising out of this Agreement, or its
performance, except for such loss or damage arising from
CITY's sole negligence or willful misconduct. Should CITY be
named in any suit, or should any claim be brought against it
by suit or otherwise, whether the same be groundless or not,
arising out of this Agreement, or its performance,
CONSULTANT will defend CITY (at CITY's request and with
counsel satisfactory to CITY) and will indemnify CITY for any
judgment rendered against it or any sums paid out in
settlement or otherwise.
Intellectual Property infringement. Notwithstanding any
provision to the contrary, CONSULTANT will, at Its own
expense, indemnify and defend CITY against any claim, that
CONSULTANT's services or work product furnished under this
Agreement infringes a patent or copyright in the United States
or Puerto Rico. In such event, CONSULTANT will pay all costs
damages and attorney's fees that a court finally awards as a
result of such claim. To qualify for such defense and payment,
CITY must (a) give CONSULTANT prompt written notice of any
such claim, and (b) allow CONSULTANT to control, and fully
cooperate with CONSULTANT in the defense and all related
settlement negotiations. CITY agrees that if the use of
CONSULTANT's services or work product becomes, or
CONSULTANT believes is likely to become, the subject of such
an intellectual property claim,, CITY will permit CONSULTANT,,
at Its option and expense, either to secure the right for CITY to
continue using CONSULTANT's services and work product or
to replace it with comparable services and work product.
Agreement No. 6963
Rev 4/4/24
7.
B. For purposes of this section "CITY" includes CITY's elected and appointed
officials, officers, employees, and volunteers.
C. It is expressly understood and agreed that the foregoing provisions will
survive termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 7, and any approval
of said insurance by CITY, are not intended to and will not in any manner
limit or qualify the liabilities and obligations otherwise assumed by
CONSULTANT pursuant to this Agreement, including, without limitation, to
the provisions concerning indemnification.
INSURANCE.
A. Before commencing performance under this Agreement, and at all other
times this Agreement is effective, Consultant will procure and maintain the
following types of insurance with coverage limits complying, at a minimum,
with the limits set forth below:
Commercial general liability. 1 V000 00
Professional Liability000�Q00
Workers cotnp nsatior Statu1 1 y i-egwa Tern trt.
B. Commercial general liability insurance will meet or exceed the
requirements of the most current ISO-CGL Form. The amount of
insurance set forth above will be a combined single limit per occurrence
for bodily injury, personal injury, and property damage for the policy
coverage. Liability policies will be endorsed to name City, its officials, and
employees as "additional insureds" under said insurance coverage and to
state that such insurance will be deemed "primary" such that any other
insurance that may be carried by City will be excess thereto. Such
insurance will be on an "occurrence," not a "claims made," basis and will
not be cancelable or subject to reduction except upon thirty (30) days prior
written notice to City.
C. Professional liability coverage will be on an "occurrence basis" if such
coverage is available, or on a "claims made" basis if not available. When
coverage is provided on a "claims made basis," Consultant will continue to
maintain the insurance in effect for a period of three (3) years after this
Agreement expires or is terminated ("extended insurance"). Such
extended insurance will have the same coverage and limits as the policy
that was in effect during the term of this Agreement, and will cover
Consultant for all claims made by City arising out of any errors or
4
Agreement No. 6963
Rev 4/4R4
omissions of Consultant, or its officers, employees or agents during the
time this Agreement was in effect.
D. Consultant will furnish to City duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement,
endorsements as required herein, and such other evidence of insurance
or copies of policies as may be reasonably required by City from time to
time. Insurance must be placed with insurers with a current A.M. Best
Company Rating equivalent to at least a Rating of "AMIL"
E. Should Consultant, for any reason, fail to obtain and maintain the
insurance required by this Agreement, City may obtain such coverage at
Consultant's expense and deduct the cost of such insurance from
payments due to Consultant under this Agreement or terminate.
8. TERMINATION OF AGREEMENT
A. During the •term of this Agreement, CITY may, in its sole discretion,
terminate this Agreement with or without cause by giving written notice to
CONSULTANT. Termination will become effective immediately upon the
giving of notice as provided in this section of the Agreement. The City
Manager may exercise such right of termination on behalf of CITY.
B. Except as otherwise provided, upon termination of this Agreement, CITY
will be liable to CONSULTANT only for all work done by CONSULTANT
up to and including the date of termination of this Agreement unless the
termination is for cause, in which event CONSULTANT need be
compensated only -to the extent required by law.
9. NOTICES. All communications to either parry by the other party will be deemed
made when received by such party at its respective name and address as follows:
Attention: Mike Halliwell
Vice. President, Sales
(818) 456-1561
mhalliwell@higherground.com
Attention: Sr. Management Analyst
City of El. -Segundo- PD
(310) 524-2278
jsolano@elsegundo.org
Any such written communications by mail will be conclusively deemed to have been
received by the addressee upon deposit thereof in the United States Mail, postage
prepaid and properly addressed as noted above. In all other instances, notices will be
deemed given at the time of actual delivery. Changes may be made in the names or
Agreement No. 6963
Rev 4/4/24
addresses of persons to whom notices are to be given by giving notice in the manner
prescribed in this paragraph.
10. PROHIBITED USE OF ARTIFICIAL INTELLIGENCE.
A. Restriction on Artificial Intelligence Usage. CONSULTANT must not
utilize, employ, or incorporate any form artificial intelligence, machine learning, or
other similar technologies (collectively, "Al") in the provision of professional
services in this Agreement without CITY's express written consent.
B. Exclusions. The Al prohibition set forth directly above will not apply to
general business tools and software that may have Al components but are not
directly Involved in the execution or delivery of professional services that this
Agreement covers, provided that such tools and software do not significantly
impact the quality or nature of such services.
C. Notification. CONSULTANT must promptly notify CITY, in writing, of any
proposal to employ Al in connection its provision of services to the CITY under
this Agreement. CITY will have the sole discretion to grant or deny such
proposal.
11. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including
CONSULTANT's subcontractors, will maintain records and other evidence of all
expenses incurred in the performance of this Agreement for a period of three (3) years
after completion. CITY or any of its duly authorized representatives will, for the purpose
of audit and examination, have access to and be permitted to inspect such records and
other evidence of expenses and costs charged to CITY and/or incurred for work related
to SERVICES. For purposes of audit, the date of completion of the Agreement will be
the date of CITY'S payment for CONSULTANT's final billing (so noted on invoice) under
this Agreement.
12. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT
for current services are within the current budget and within an available, unexhausted
and unencumbered appropriation of the CITY. In the event the CITY has not
appropriated sufficient funds for payment of CONSULTANT services beyond the current
fiscal year, this Agreement will cover only those costs incurred up to the conclusion of
the current fiscal year.
13. INDEPENDENT CONTRACTOR. CONSULTANT, CONSULTANT's
subconsultants, employees, agents, and representatives, will act as independent
contractors while performing the SERVICES and will have control of CONSULTANT's
work and the manner in which it is performed, except as is otherwise provided herein.
CONSULTANT will be free to contract for other services performed during the term of
this Agreement. CONSULTANT is not an agent or employee of CITY and Is not entitledi
to participate in any pension plan, insurance, bonus or similar benefits CITY provides for
its employees.
6
Agreement No. 6963
Rev 4/4/24
14. ASSIGNMENT. An essential element of this Agreement is the skill and creativity
of CONSULTANT. CONSULTANT may not, therefore, assign the creative portions of
the work to a third party for the production of the work without CITY's prior written
consent. Failure to conform to this provision may result in termination of the
Agreement.
15.CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the
main body of this Agreement takes precedence over the attached Exhibits; this
Agreement supersedes any conflicting provisions. Any inconsistency between the
Exhibits will be resolved in the order in which the Exhibits appear below:
A. Exhibit "A" I.1,►LE; ACEEME
16. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the
Parties' entire understanding. There are no other understandings, terms or other
agreements expressed or implied, oral or written. There are three (3) attachments to
this Agreement. Except as otherwise provided, this Agreement will bind and inure to the
benefit of the Parties to this Agreement and any subsequent successors and assigns.
17. MODIFICATION. No alteration, change or modification of the terms of the
Agreement will be valid unless made in writing and signed by both Parties hereto and
approved by appropriate action of CITY. The city manager may exercise this authority
on behalf of CITY.
18. ELECTRONIC SIGNATURES; SIGNATURE AUTHORITY. This Agreement may
be executed by the Parties on any number of separate counterparts, and all such
counterparts so executed constitute one Agreement binding on all the Parties
notwithstanding that all the Parties are not signatories to the same counterpart. In
accordance with Government Code § 16.5, the Parties agree that this Agreement,
Agreements ancillary to this Agreement, and related documents to, be entered into in
connection with this Agreement will be considered signed when the signature of a party
is delivered by electronic transmission. Such electronic signature will be treated in all
respects as having the same effect as an original signature. CONSULTANT warrants
that its signatory (or signatories, as applicable) to this Agreement has the legal authority
to enter this Agreement and bind CONSULTANT accordingly.
19. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with
CONSULTANT's Taxpayer Identification Number.
20. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that CONSULTANT has demonstrated trustworthiness and possesses the
quality, fitness, and capacity to perform the Agreement in a manner satisfactory to
CITY. CONSULTANT represents that CONSULTANT's financial resources, surety and
insurance experience, service experience, completion ability, personnel, current
7
Agreement No. 6963
Rev 4/4/24
workload, experience in dealing with private parties, and experience in dealing with
public agencies all suggest that CONSULTANT is capable of performing the proposed
contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public agency.
21. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition
contained in this Agreement will not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant, or condition contained in this
Agreement whether of the same or different character. The payment or acceptance of
fees for any period after a default will not be deemed a waiver of any right or
acceptance of defective performance.
22. SEVERAI ILITY. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, then such portion will be deemed
modifiedto the extent necessary in the opinion of the court to render such portion
enforceable and, as so modified, such portion and the balance of this Agreement will
continue in full force and effect.
23. TIME IS OF ESSENCE. Time is of the essence for each and every provision of
this Agreement.
24. FORCE MAJEURE. Should performance of this Agreement be prevented due to
fire, flood, explosion, sects of terrorism, war, embargo, government action, civil or military
authority, the natural elements, or other similar causes beyond the Parties" reasonable
control, then the Agreement will immediately terminate without obligation of either party
to the other.
25. INTERPRETATION; VENUE. This Agreement and Its performance will be
governed, interpreted, construed and regulated by the laws of the State of California.
Exclusive venue for any action involving this Agreement will be in Los Angeles County.
[SIGNATURES ON NEXT PAGE]
l:
Agreement No. 6963
Rev 4/4rz4
IN WITNESS WHEREOF the parties hereto have executed this contract the day and
year first hereinabove written.
CITY OF EL SEGUNDO
Rodriguez,
Chief of Police
A ET;
Tracy Weaver,
City Clerk
HigherGround, Inc.
By: Terrance Ryan
Title: President & CEO
Z'
By: Ric Cahak
Title: Secretary
Taxpayer ID No.95-4263998
APPROVED AS TO FORM:
MARK D. HENSLEY, City Attorney
By:
+Joa�qinquez, Assistant City Attorney
16*4" APPUI0;4
LIVE911 SALES AGREEMENT
This Live911 service Sales Agreement, By and Between, HigherGround, Inc., 275 E. Hillcrest Drive, Ste.
160-108, Thousand Oaks, CA 91360 and City of El Segundo, 350 Main St, El Segundo, CA 90245 is
effective on the date of the activation of the service.
Live911 provides the ability for first responders in the field, as well as any support personnel such as
Watch Commanders, UAS Operators (DFR), Real Time Crime Center (RTCC) Staff, Incident
Commanders, EOC Staff, etc., to monitor the location and audio of incoming 911 emergency calls. The
geotagged call is provided to those field personnel within a pre -determined radius. The intent is to provide
first responders with the most immediate and complete information of an ongoing emergency incident.
Software (annual recurring cost)
Concurrent Licenses: 16 ($900 each) $ 14,400
Total Annual Cost ( $
Professional Services (one-time cost)
Remote Virtual Basic Training 1 $ 595
Total One -Time Cost 1 $ 595
Total Initial Investment I $ 1
Live911 solution will be installed on a server provided by Hawthorne PD and installed in the South Bay
Regional 911 center.
Each agency will have a unique set of geofences to partition the 911 calls specific to that agency.
HigherGround will load, configure, and turn up the Live911 software via remote access.
Live911 will be installed on a Customer provided VM or server.
The Concurrent License fee(s) are annual recurring charges ($14,400). If the renewal fees are paid, the
service will continue.
Maintenance and upgrades to the software are included in the software license fees.
As part of the License maintenance, the Live911 service must have access to the HigherGround system
that periodically checks on the status of the system and the currency of the licenses.
The customer is responsible for providing network access to the Live911 server and MDC configuration.
818.456.1600 e www.higherground.com v 275 E. Hillcrest Drive, Ste. 160-108, Thousand Oaks, CA 91360
Page 1 of 2
Agreement No. 6963
Additional Terms & Conditions
1. The Customer is granted a License to use the Software within the scope and terms of this
Agreement.
2. The Software is protected by copyright laws and international copyright treaties as well as other
laws and conventions related to intellectual property. In relation to the Customer, the intellectual
property rights to the Software remain exclusively with HigherGround or, where applicable, with
HigherGround's suppliers and partners.
3. Neither the Software itself nor the right to use the Software may, without the prior written consent,
be rented -out or leased -out, borrowed -out, or sub -licensed. The Software may not be duplicated or
copied, either in part or in whole.
4. 100% payment is due within 30 days after software installation and upon invoice.
City of El Segundo
doKorizedw ntur
Print Name
t
Print Title
Date
HigherGround, Inc.
Authorized Signature
Mike Halliwell
Print Name
Vice President, Sales
Print Title
05/16/2024
Date
818.456.1600 o www.higherground.com a 275 E. Hillcrest Drive, Ste. 160-108, Thousand Oaks, CA 91360
Page 2 of 2