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CONTRACT 3749 Professional Services Agreement CLOSEDDUPLICATE ORIGINAL 3749 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND Coplogic, Inc. THIS AGREEMENT, is entered into this l Oth day of September, 2007, by and between CITY OF EL. SEGUNDO, a municipal corporation ( "CITY ") and Coplogic, Inc., a California Corporation ; "CONSULTANT "). 1. CONSIDERATION. A. As partial consideration, CONSULTANT agrees to perform the scope of services attached as Exhibit "A," and incorporated herein ( "SERVICES "). The SERVICES include installing and maintaining a program for various tasks associated with submitting and retrieving information for law enforcement activities ( "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 the SERVICES, but in no event more than twenty -one thousand dollars ($21,000). The compensation will be paid at the time and manner set forth in the SERVICES. 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. OWNERSHIP. Title and full ownership rights to the SOFTWARE developed under this Agreement at all times remain with CONSULTANT. Title and full ownership rights to any documents, reports, or other data generated from CITY's use of the SOFTWARE belongs to CITY. 3. IR.REVOCABLE LICENSE. In addition to the licensing permissions granted in the SERVICES fir the SOFTWARE, CONSULTANT grants to CITY an irrevocable license to use the SOFTWARE, even after termination of this Agreement, if the SOFTWARE is required to access docurr ents, reports, or other data generated from CITY's use of the SOFTWARE, and any updates thereto. This license will survive termination of this Agreement. This license includes, without limitation, the right to provide visual output on the world wide web. 4. TERM. The term of this Agreement is one (1) year commencing on the date this agreement becomes effective, unless extended in accordance with this Agreement. 5. WARRANTIES. CONSULTANT represents and warrants that: Page I of 11 374 9 . A. The SOFTWARE is the result of CONSULTANT's sole efforts unless otherwise stipulated as a collaboration; B. Except as otherwise disclosed in writing to CITY, the SOFTWARE is unique and original and does not infringe upon any copyright or patent; C. The SOFTWARE, or its duplicate, has not been accepted for sale elsewhere; and D. All SOFTWARE installed by CONSULTANT will be warranted to be free from defects in material and workmanship for a minimum period of one (1) year from the date CITY accepts the SOFTWARE. CONSULTANT warrants that the SOFTWARE will perform in accordance with and strictly comply with specifications, requirements, standards and representations set forth in this Agreement. Should the SOFTWARE not perform as required, CONSULTANT will promptly correct any such deviations. The correction of any such deviation will be at no cost to the CITY and the work performed will be performed in a timely and professional manner by qualified personnel. 6. YEAR 2000 COMPLIANCE WARRANTY. A. For purposes of this Agreement, "Product" includes, without limitation, any piece or component of equipment; hardware; software; and/or internal components or subroutines therein. B. CONSULTANT warrants that any Product furnished under this Agreement will: i. Calculate, process; display, store, transmit, and /or receive accurate date data from, into, and between the 20"' and 21" centuries; during the years 1999 and 2000; and leap years without interruption or human intervention. ii. Ensure that all date related functions will include the correct indication of century. Ili. Accept two digit year date data in a manner that resolves any ambiguities as to century in a defined manner. iv. Sense, detennine, record, transfer, and print correct date values and ensure that all operations do not result in abnornal terminations and/or outcomes. C. In the event of any decrease in Product functionality or accuracy related to time and /or date data related codes and /or internal subroutines that impede the Product from operating correctly using dates beyond December 31, 1999, CONSULTANT will restore or repair the Product to the same level of functionality as warranted herein, so as to minimize interruption to City's ongoing business processes, time Page 2 of 11 374 9 being of the essence. CONSULTANT will pay for any and all costs associated with such work, including, without limitation, data conversion tools. D. CONSULTANT acknowledges that the Year 2000 Compliance warranty is a material inducement for CITY to enter into this Agreement. CONSULTANT will therefore be liable for any contingent, incidental, or consequential damages to persons, property, or public services due to a Product failing to conform to the warranty contained in this Agreement. E. By signing this Agreement, CONSULTANT certifies that it is aware of the Year 2000 Information and Readitiess Disclosure Act, 112 Stat. 2386, 15 U.S.C. §§ 6601, et seq. ( "the Act "). i. CONSULTANT acknowledges and agrees that the warranty contained herein supersedes any Year 2000 Statement ( "Y2K Statement "), as defined by the Act, that CONSULTANT may have made, or will make, unless such Y2K Statement provides CITY with greater protections and warranties than this Agreement in which case that Y2K Statement may be incorporated herein at CITY's sole option. ii. CONSULTANT acknowledges and agrees that the Act is inapplicable to this Agreement as set forth in Section 4(e)(2) of the Act. In addition, notwithstanding any other provision of law, CONSULTANT expressly waives any protections it might otherwise have under the Act. Such waiver will not be construed to limit any other rights or protections CONSULTANT may have. F. This warranty will survive termination or expiration of the Agreement. Nothing in this warranty will be construed to limit any rights or remedies the City may otherwise have under this agreement with respect to defects other than Year 2000 perfonnance. 7. "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. B. "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 Page 3 of I I 3749 . 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 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. 8. LAWS AND REGULATIONS. CONSULTANT is 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. 9. CONFIDENTIALITY. CONSULTANT agrees that any and all data, reports and documentation supplied by CITY or its affiliates or third parties on CITY's behalf, which are confidential and which are clearly designated as confidential, are, subject only to the disclosure required for the performance of CONSULTANT's obligations hereunder, held in strict confidence and may not be disclosed or otherwise disseminated by CONSULTANT without CITY's cons,,-nt. 10. PUBLIC RECORDS ACT. The Parties to this Agreement understand and agree that data affected by this Agreement are subject to the requirements, exceptions and exemptions set forth in the California Public Records Act. 11. INDEMNIFICATION. A. CONSULTANT agrees to the following: i. Indentn fication for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request defend CITY from Page 4 of 11 3749. and against any and all suits, actions, or claims, of any character whatever, including copyright or patent infringement claims or causes of action, 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. ii. 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. 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. in Indemnification fog° Intellectual Property Infringement. Claims that trigger CONSULTANT's obligations under this Section 12 include any claims that the software resulting from perfonning this Agreement in accordance with the Scope of Services infringe any patent, trademark, service mark, copyright, or accidental or intentional violation of a trade secret or other intellectual property of a third party not included in this Agreement. CONSULTANT, in its reasonable judgment and at its option and expense: (1) obtain for the CITY the right to continue using the Software; or (ii) replace or modify the Software so that it becomes non - infringing while giving equivalent performance. CONSULTANT does not have any liability for a claim under this subsection alleging that any Software infringes a patent or copyright if the alleged infringement was developed based on information furnished by CITY or if the alleged infringement is the result of a modification made by CITY, at the direction of CITY or with CITY's approval. CITY is responsible for maintaining appropriate licenses for software not provided by CONSULTANT. For purposes of this subsection, should any claim subject to indemnity be made against CONSULTANT or CITY, the party against whom the claim is made agrees to provide the other party with prompt written notice of the claim. CONSULTANT has control over the defense and settlement of any claim with respect to its obligations under this Subsection 12(A)(iii). CITY agrees to cooperate with CONSULTANT and provide reasonable assistance in the defense and settlement of such claim. iv. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, and representatives. Page of t 1 12 3749. B. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement. C. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by CITY, 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 perfonnance 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: Type of Insurance Commercial general liability: Professional Liability Workers compensation Limits (combined single) $1,000,000 $1,000,000 Statutory requirement. 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 tenninated ( "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 omissions of Consultant, or its officers, employees or agents during the time this Agreement was in effect. Page 6 of 1 I 77 4 9 . �..� 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 "A:VII." 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. 13. TERVIINATION 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. C. Should it become impossible for CONSULTANT to complete the SOFTWARE because of illness, death, or injury, this Agreement may be terminated at CITY's sole discretion and, in such event, all completed work, materials, and supplies related to the SOFTWARE will be delivered to CITY and become CITY's property. In the event of such termination, CITY may take such action as may appear to be appropriate in the circumstances then prevailing, including, without limitation, commissioning another contractor to complete the SOFTWARE. CITY will pay CONSULTANT for work completed up to and including the termination date. 14. NOTICES A. CONSULTANT will notify CITY of changes in physical mailing address and email address. All notices given or required to be given pursuant to this Agreement will be in writing and may be given by personal delivery, by mail, or by email. Notice sent by mail will be addressed as follows: To CITY: Page 7 of 1 1 3749. ;3 To CONSULTANT: and, when addressed in accordance with this paragraph, will be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices will be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 15. 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 wort: 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 nc ted on invoice) under this Agreement. 16. NON - APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for current sery ces 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. 17. 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 cther services performed during the term of this Agreement. CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. 18. 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 'or the production of the work without CITY's prior written consent. Failure to conform to this provision may result in termination of the Agreement. 19. 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 hclow: A. Exhibit A: SERVICES. 20. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the Parties' entire understanding. There are no other understandings, terms or other agreements expressed or Page 8 of I 1 374 9 implied, oral or written. There are two (2) attachments to this Agreement. Except as otherwise provided, th_s Agreement will bind and inure to the benefit of the Parties to this Agreement and any subsequ ,-nt successors and assigns. 21. 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. 22. FACSIMILE SIGNATURES FOR SUBSEQUENT AGREEMENTS. The Parties agree that 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 facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature. 23. TAXPAYER IDENTI FICATION NUMBER. CONSULTANT will provide CITY with CONSULTANT's Taxpayer Identification Number. 24. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents thit CONSULTANT has demonstrated trustworthiness and possesses the quality, fitness, and capacity to perform the Agreement in a mariner satisfactory to CITY. CONSULTANT represents that CONSULTANT's financial resources, surety and insurance experience, service experience, completion ability, personnel, current 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. 25. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition contained in :his 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. 26. SEVERABILITY. 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 modified to 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. 27. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 28. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elem .-nts, or other similar causes beyond the Parties' reasonable control, then the Agreement will immediately terminate without obligation of either party to the other. Page 9 of I I 374 9 29. 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) Page 10 of 1 I 374 9 . IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF E AGUNDO /061- Jef�tanagcr art. Ci ATTEST: _ v'11/Y1 Cindy M c sen, City Clerk APPROVED AS MARK D. F ENS In Karl H. Berger, Assistant City A At 1 COPLOGIC, y urkhammer Vi resident Taxpayer ID No. c;2 O — /0� 9 8 7a Page 11 of I I 3749 The undersigned represent and warrant that they are authorized as representatives of the party on whose behalf they are signing to sign this Agreement and to bind their respective party thereto. City of El Segu ndo A Municipal Corporation It Title:W4WJMXM City Manager gxe. AF7 Coplogic Suppoit and Maintenance A- reement 7 'oplogic, Inc. By Randy Burk hammer T le: Vice President 3749•.., SCHEDULE "A" Company Hours of Support and Maintenance Service are as follows: Regular Hours of Service (pacific time) After Hours Service (pacific time) 0900 to 1700 hours 1700 hours to 0900 hours Monday to Friday Monday to Friday - excluding Saturdays & Sundays Holidays observed by the U.S. Federal Holidays Govt. e -mail received by: Company staff at e -mail received by: Company staff at support @coplogic.com support @coplogic.com Incident /Request for Service Priority All support an3 maintenance incidents / requests for service will be prioritized on the following basis: Priority Definition A Work is stopped to the point that critical business activities cannot continue. e.g. Loss of use of maior features, file system corruption, data loss, security issue, system outage. B Are issues or features of the product preventing normal operations. C Non- critical features, for 4vhich a convenient or reasonable work around exists, or a feature which functions unexpectedly. Slight inconvenience. Response Time The following table outlines the response times for each priority. Priority Response Time During regular hours of service Response Time During After Hours of Service A 2 hours 6 hours from time of notifying the vendor contact(s) through voice mail or e -mail B (2) business days of Company receipt of verbal, Not available Coplogic Support and Maintenance Agreement 8 t � J 1. Incident /Request for Service Reporting Procedure All problems, queries or requests for assistance must be made to Company at support@coplogic.com, during regular business hours of service. Customer must be prepared to leave a contact name, phone number, workstations affected, screenshots, a description of the problem /service and the impact. Companys' resources will work with the Customer to diagnose the problem. After investigating the issue, Company and the Customer will jointly categorize the problem into: Type of Problem written or electronic notice thereof and to correct the Customer Server Hardware Problem Customer Priority B Issue by the Customer's reasonably Customer Customer Network Communication requested date. If the Priority B Issue is not corrected Isolated Workstation Issue Customer witf.in 2 business days of the original notification Customer Perfonnance /storage Company will provide the Customer with reports of Application or software related Company its efforts to correct the Priority B Issue as requested by Customer. C As time permits basis or inclusion in the next Not available scheduled update to the Licensed Product. 1. Incident /Request for Service Reporting Procedure All problems, queries or requests for assistance must be made to Company at support@coplogic.com, during regular business hours of service. Customer must be prepared to leave a contact name, phone number, workstations affected, screenshots, a description of the problem /service and the impact. Companys' resources will work with the Customer to diagnose the problem. After investigating the issue, Company and the Customer will jointly categorize the problem into: Type of Problem Ownership Customer Server Hardware Problem Customer Desktop Hardware Problem Customer Customer Network Communication Customer Isolated Workstation Issue Customer Customer Database Customer Perfonnance /storage Application or software related Company Company will deal with problem /incident according to the priority assigned. In the case that a problem cannot be readily resolved, Company will attempt to identify a work around. As soon as Company corrects an Issue, Company shall notify the Customer that the Issue has been corrected by sending an electronic mail. Coplogic Support and Maintenance Agreement 9 SCHEDULE "B" Coplogic Desk Officer Online Reporting System version 3.9.3 Annual Maintimance Fee: 53,500 On -site Support: 51500 per day (includes travel time and expenses) Coplogic Suppo:-t and Maintenance Agreement 10 3749.;;' EXHIBIT A Coplo;;ic, Inc. SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT THIS SOFTVk ARE SUPPORT AND MAINTENANCE AGREEMENT ( "Support Agreement ") is made on this _ V_�day of 5&P , 2007, by and between the City of El Segundo, a municipal corporation under the laws of the State of California ( "Customer ") and Coplogic, Inc., an existing U.S. corporation, whose address is 231 Market Place #520 San Ramon, Ca. 94583 ( "Company" ) RECITALS: Customer has abtained a license to use the Desk Officer Online Reporting System ( "Software "), more particularly described in the Software License Agreement of the same date. Customer wishes to retain Company to p •ovide software maintenance and support services for the Software. Support Services Generally. During the duration of this Support Agreement, Company shall provide to the Customer support and maintenance for the Software purchased in accordance with the terms of this Support Agreement and the response time described in Schedule A, attached hereto. Support includes, without limitation, periodic review of current outstanding questions and usage issues, the provision of new and upcoming releases of updates, and customizations and enhancements made to the Software that the Customer is licensed to use that are generally made available without additional ,-harge to other users of the Software with similar support and maintenance contracts. The parties shall amend Schedule B from time -to -time in the event that the Customer purchases or is granted the right to use additional modules of the Software. 2. Hours of Support. Company will provide the support services during the hours as described in Schedule A attached hereto. 3. New Releases. Company will, from time -to -time issue new releases of the software (Schedule B), and when it does, it will immediately provide a copy of the release documentation, and updated user or system documentation. If any part of the Customer's custom code is not part of the general release del_vered by Company, then Company will assist and provide guidance for integrating the custom code into the new release. Any time taken to modify or repair unauthorized changes that may require Company assistance to modify may be billed at Companys' then current pricing schedule. 4. Exception.. Company is not responsible for maintaining unauthorized Customer modified portions of the Software, Customer data files or for maintaining portions of the Software affected by unauthorized Customer modified portions of the Software. The Customer agrees that the equipment on which the Software operates will be operating properly at all times and must have been and continue to be properly maintained by the manufacturer of the equipment or a properly qualified scrvice organization. Corrections for difficulties or defects traceable to the Customer's errors or unauthorized changes, Customer's hardware, or conflicts with other software not identified by Company as compatible or part of the recommended operating environment may be subject to billing at Companys' current standard time and material charges. The Customer will be Coplogic Support and Maintenance Agreement 3749•,.: responsible for properly testing and applying routine virus updates and security patches without the need for acditional Companys' notification. Company will be responsible for testing Companys' software updates prior to making them available to the Customer. The Customer acknowledges responsibility for testing Companys' software updates before applying them to the Customer's production systems. For servers running Companys' software, the Customer acknowledges responsibility for communicating with Company prior to installation of non- Companys' software service packs, implementation of new releases or versions of non- Companys' software, or installation of new non- Companys' software products. Except for emergency replacement of a failing server, the Customer acknowledges responsibility for communicating with Company prior to replacin;; a server on which Companys' software is being used. Company is not responsible for changes if related to or caused by software not provided by Company. For workstations running Company's software, the Customer acknowledges responsibility to test new workstation configurations, software service packs, new releases or versions of software, and new software products prior to implementation. Limitations. Company may limit or suspend Customer's access to support, pursuant to this Support Agreement, where (1) Customer is in material default under the terms of this Support Agreement (non- payinent is deemed to be a material default), or (2) Customer fails to provide staff with at lea,.t three (3) years experience with Microsoft's Windows Operating System, who are comfortabl: using Windows Explorer and comfortable using Internet Explorer or another Internet Browser, to administer the Software. Prior to limiting or suspending support, Company will give the Customer 45 days written notice of its intention to do so and actively participate with the Customer to remedy any such default or failure. 6. Adjustments to Terms and Conditions. Company may change the Annual Fee and the terms and conditions of this support agreement provided that written notice is given to the Customer thirty (30) days prior to the expiration of the current term. Cost 7. Annual Fee. The Customer shall pay Company an Annual Fee for which support is being provided (see Sched ale B for original Maintenance Fee). Fee is to be paid at the onset of the first year of service anc. will reoccur on the anniversary date each year of service thereafter. For a period of three (3) years following execution of this Support Agreement, the Annual Fee shall not increase by more than 5% of the previous year's support service cost. All requests by the Customer for additional Features or functionality that fall outside of Company's ongoing policy of upgrading the Software will be quoted separately. Late Payrn.-nts. All invoices will be sent at least thirty (30) days prior to their due date. Payments received fcrty five (45) days after their due date will be assessed a ten (10) percent late fee. Coplogic Support and Maintenance Agreement 2 3749 8. Taxes. In addition to other amounts payable under this Support Agreement, Customer shall pay any and al l federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Customer's use of the Software or the payment of the License Fee to Company, other than taxes assessed against Company's net income. Such taxes, duties, fees, withholding, or other charges shall be paid by Customer or Customer shall provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Company is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Company from Customer pursuant to this Support Agreement, Customer shall promptly reimburse Company my such amounts 9. On Site St pport. The Customer shall reimburse Company at the rate of $1,500.00 per day for any On -Site Support incurred at the Customer's direct written request and authorization. This rate shall prevail regardless of the number of Company support personnel dispatched to the Customer's site, and shall 1: e paid for each day that Company personnel are required to be on the Customer's site. Customer will not pay for Company personnel travel time or travel expenses. In response to written Customer requests for Company to provide on -site routine non - emergency support, Company Shall produce a written estimate of the time required to provide the requested support and state any requirements, such as the presence of Customer staff or other resources or materials. Any On -S_te Support provided by Company shall only be invoiced by Company or paid by Customer if the problem arose due to something other than a defect in the Product. Customer's Obligation 10. The Customer Agrees to: (a) furnish descriptions of Problem(s) in the form reasonably requested by Company Support representatives, (b) assis-: Company's efforts to reproduce the Problem in the applicable operating environs lent, and (c) make available qualified, trained staff on -site to carry out Company's instructions and /or provide emote access to system(s) as requested by Company. 11. The Customer shall designate its Support Contact(s) to provide routine end user support for the Customer personnel concerning the Product. 12. The Customer shall take appropriate steps to educate its end users about the need to contact the Support Contact (rather than Company directly) when support is needed. The Customer shall appropriately publicize the name, telephone number, and /or fax number and /or electronic mail address if applicable, of the Support Contact. 13. Access to Data and System. The Customer agrees to provide Company with data dumps, as requested, remote access to the Software system, and with sufficient test time on the Customer's computer System to duplicate the problem, to certify that the problem is with the Software, and to certify that the problem has been corrected. 14. The Customer shall install and maintain for the term of this Support Agreement, a reasonable and satisfactory method of direct remote computer access to the Software. Company shall use this access service in connection with error correction, software updating and user support only, and Coplogic Support and Maintenance Ag, reement 3749 . ,-;i only upon prior written or email notice to the Customer, and Customer's acknowledgment of that notice. 15. The Customer must install the Company provided upgrades to the Software in their entirety to the most recer.t version within ten (10) business days of the release of any updates or modifications of the Software unless otherwise mutually agreed. Business days are based on a standard five (5) day work weel: of Monday through Friday. Company will not be obligated to provide support for release versions that are more than two release versions older than the current version unless specified in this support agreement. Company agrees that all release versions will be tested for installation in a computer environment substantially similar to the Customer's and that all releases will be fre,- of material defects that would affect the orderly continuation of Customer's use of the Product. 16. The Customer agrees that, subject to and in accordance with the Customer's internal policies and guidelines, it will upgrade the computer operating software, hardware and underlying database engines of the Desk Officer Online Reporting System software as necessary to meet the changing requirements of the Software as specified by Company as part of a current release of the Software, or as the parties mutually agree. The Customer agrees that it will maintain current licenses to all software, hardware, and underlying database engines associated with the proper operation of the Desk Officer Online Reporting System. The parties agree that Company is not obligated to ensure that its new release of the Software is compatible with outdated (exceeding 4 years from date of initial release) hardware, computer operating software or database engines). Confidentiality 18. Confidential Information. (a) The parties hereby acknowledge that they may have access to information that is confidential to one another ( "Confidential Information "). "Confidential Information" includes, but is not limitecl to, the licensed products and enhancements, all related source and object codes, Documentation, customer and prospect lists, pricing proposals, financial and other business information, all data and information relating to Customer's operation, and any other information designated as confidential or proprietary information by the disclosing party. "Confidential Information" shall not include any information which (i) becomes part of the public domain through no act or omission of the other party; (ii) is lawfully acquired by the other Marty from a third party who is not in breach of an obligation of confidentiality; (iii) was in the other party's lawful possession prior to disclosure of such information; (iv) is independently developed by the party without the benefit or use of the Confidential Inform- ation; or (v) is required to be disclosed under a court order or a valid subpoena, provided that the recipient of the Confidential Information promptly notifies the disclosing party in order for the disclosing party to have an opportunity to seek an appropriate protective order. The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party's Confidential Information by preventing any unaud orized copying, use, distribution, installation or transfer of possession of such information. Each party agrees to maintain at least the same procedures regarding the other Coplogic Support and Maintenance Aureement 4 3749. party's Confidential Information that it maintains with respect to its own Confidential Information. (b) Company acknowledges that the Customer is a governmental agency and may be required to disclo, e certain information under requests made according to provisions of the Public Records Act. Customer shall give notice to Company of any request for the disclosure of any information set apart and marked "confidential," "proprietary" or "trade secret" by Company. Company shall then have five (5) days fi-om the date it receives such notice to enter into an agreement with Customer providing for the defense of, and complete indemnification and reimbursement for all costs (including plaintiff's attorney's fees) incurred by Customer in any legal action to compel the disclosure of such information under the California Public Records Act. Company shall have the sole responsibility for the defense of the actual proprietary or trade s..cret designation of such information. The parties understand and agree that any failure by Corlpany to respond to the notice provided by Customer and /or to enter into an agreement With Customer, as set forth above, shall constitute a complete waiver by Company of any nondis, ,-losure or confidentiality rights hereunder with respect to such information, and such information shall be disclosed by Customer pursuant to applicable procedures required by the California Public Records Act. (c) Both parties acknowledge that any use or disclosure of the other party's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the non - disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non - disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure. The terns and provisions of this section shall survive any termination of this Support Agreement. Termination. 19 Limitation of Liability 20. To the extent permitted by law, neither party's liability to the other party in connection with any cause of actior, costs or damagcs relating to this support agreement shall not exceed the annual fee paid in the twelve month period preceding the event giving rise to the claim. Notwithstanding the foregoing, for purposes of the services performed by Company under this Support Agreement, Company agrees to fitlly defend, indemnify and hold harmless Customer, its officers, employees and agents from any damage, loss, liability, costs (including reasonable attorneys fees), claim or cause of action arising out of injury, loss or damage to real property or tangible personal property, or arising from personal injury or death, where such damage, loss, liability, costs, claim or cause of action is caused or incurred in whole or in part as a result of any negligent or Coplogic Support and Maintenance Auieement S/ 4 U . wrongful act cr omission or willful misconduct of Company, its officers, employees, agents, contractors anJ assigns. Company's obligation hereunder is contingent upon Customer providing Company prompt written notice of any such claim, action, lawsuit or other proceeding and Customer shall fully cooperate with Company in the defense and all related settlement negotiations. The existence of any insurance policies or coverage's shall not affect the parties' rights and obligations hereunder. General 21. This Agreement shall be binding upon the successors and assigns of both parties, provided, however that no assignment, delegation or other transfer shall be made by Company without the prior written approval of the Customer, which approval shall not be unreasonably withheld. 22. No modification or amendment of this Agreement will be valid or binding unless reduced to writing and duly executed by the party or parties to be bound. 23. Each party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause or effect of such delay or failure to the extent the party is able. In the event of such delays, the timetables shall be extended by as many calendar days as the delay caused by forces outside the reasonable control of the parties. 24. This Support Agreement may be executed in separate counterparts, each of which so executed and delivered shall constitute an original, but all such counterparts shall together constitute one and the same instrument. Any such counterpart may comprise one or more duplicates or duplicate signature pages, any of which may be executed by less than all of the parties provided that each party executes at least one such duplicate or duplicate signature page. The parties stipulate that a photocopy of an executed orig nal will be admissible in evidence for all purposes in any proceeding as between the parties. 25. Any provision of this Support Agreement or part thereof found to be illegal or unenforceable shall be deemed severed, and the balance of the Agreement shall remain in full force and effect. 26. This Support Agreement shall be governed and construed in accordance with the laws of the State of California. Venue of any action brought with regard to this Support Agreement shall be in Contra Costa County, California. Coplogic Support and Maintenance Aureement 6 3749 . License Agreement This Agreement is made between the City of El Segundo, California located at 350 Main St. El Segundo, CA 90245 hereafter referred to as "Licensee" and Coplogic Inc., hereafter referred to as "Licensor" with a principal place of business at 231 Market Place Suite #520 San Ramon, Ca. 94583 NOW, - THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND C13NDITIONS IDENTIFIED HEREIN, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. DEVINITIONS (a) "Documentation" means technical manuals, training manuals, user guides, and workbooks, as updated and amended from time to time, provided by Licensor to assist Licensee with the use of Software. (b) "Software" means all or any portion of the global version of the binary computer software programs and updates and enhancements thereto, (including corresponding sour,-,e code, unless specifically excluded herein) and Documentation delivered by Licensor to Licensee. Software includes any third -party software delivered by Licensor as specified in the Schedule, and modifications made to the Software. Software does not include source code to third party software. Unless specifically stated otherwise, all Software is delivered to Customer only if and when generally commercially available. (c) 'Install" means placing the Software on a computer's hard disk. (d) "Use" means (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purE.oses. 3749 . 2. GRANT OF RIGHTS AND SCOPE OF SERVICES Licensor hereby grants to Licensee a nonexclusive nontransferable license to install and use the rl oftware on a computer /server in Licensee's possession. Licensee has elected to maintain the application on Licensor's servers. Licensor also agrees to provide the services listed in the Scope of Services attached hereto as Exhibit "A" and made a part hereof. 3. LICENSE TERM This Agreement and this License are effective when the Agreement is executed by both parties a 1d the License granted to the Software remains in force until terminated in accordar.ce with paragraph 5 of this Agreement. 4. LICENSE FEE Licensee agrees to pay Licensor the following one time license fee of $17,500.00. Other associated fees are outlined in the Support and Maintenance Agreement. All payments shall be nade within thirty (30) days from the date of invoice by electronic funds transfer to the Lizensor's account specified in writing, or by check made payable to "Coplogic, Inc." and delivered to 231 Market Place Suite #520 San Ramon, CA 94583. 4.1 Taxes. In addition to other amounts payable under this Agreement, Licensee shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Licensee's use of the Software or the payment of the License Fee to Licensor, other than taxes assessed against Licensor's net income. Such taxes, duties, fees, withholding, or other charges shall be paid by Licensee or Licensee shall provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Licensor is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Licensor from Licensee pursuant to this Agreement, Licensee shall promptly reimburse Licensor any such amounts. 3749.,,11 5. TERMINATION On termination, Licensee will promptly return all copies of the Software to Licensor or destroy z 11 of Licensee's copies of the Software and so certify to Licensor in writing within R urteen (14) days of termination. 6. RIGHTS UPON TERMINATION Licensor has and reserves all rights and remedies that it has by operation of law or otherwis: to enjoin the unlawful or unauthorized use of Software or Documentation. Upon termination of this License, all rights granted to Licensee under this Agreement cease and Licensee will promptly cease all use and reproduction of the Software and Docume station, and Licensee shall return to Licensor or destroy the original and all copies o . the Software and Documentation including partial copies and modifications. Sections 9, 10, 11, and 12 will survive tenuination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default. 7. TITLE TO SOFTWARE Licensor retains title to and ownership of the Software and Documentation and all enhancements, modifications and updates of the Software or Documentation. Licensee shall not distribute the Software to any persons or entities other than Licensee's employees, consultants, or contractors. Licensee may not sell the Software to any person or make any other commercial use of the software. Licensee shall retain all copyright and tradema °k notices on the Software and Documentation and shall take other necessary steps to protect Licensoe's intellectual property rights. 8. MODIFICATION AND ENHANCEMENTS License, will make no efforts to reverse engineer the Software, or make any modifications or enhancements or derivative works based on the Software without Licensor's express written consent. 3749. 11. ATTORNEY FEES If any le jai action is necessary to enforce this License, each party will be responsible for their ow n attorney fees. 12. CO:yFIDENTIAL INFORMATION (a) The :enn "Confidential Information" shall mean any and all information, which is disclosed by either party ( "Licensor ") to the other ( "Licensee ") verbally, electronically, visually, or in a written or other tangible form, which either is identified or should be reasonably understood to be confidential or proprietary. Confidential Infomlation includes, but is not limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, customer lists, employee information, financial information, confidential information concerning Licensor's business, as Licensor has conducted it or as it nay conduct itself in the fixture, confidential information concerning any of Licensor's past, current, or possible future products or manufacturing or operational methods, including information about Licensor's research, development, engineering, purchasing, manufacturing, accounting, marketing, selling or leasing, and any software ( including third party software) provided by Licensor. Licensor's Confidential Information shall be treated as strictly confidential by Licensee and shall not be disclosed by Licensee except to those third parties with a need to know and that are operating under a confidentiality agreement with non - disclosure provisions no less restrictive than those set forth herein. This Agreement imposes no obligation upon the parti -s with respect to Confidential Information which either party can establish by legally suffi3lent evidence: (1) was in the possession of, or was rightfully known by the Licensor without an obligation to maintain its confidentiality prior to receipt from Owner; (ii) is or becomes generally known to the public without violation of this Agreement; (iii) is obtained by Licensee in good faith fi-om a third party having the right to disclose it without an o )ligation on confidentiality; (iv) is independently developed by Licensee without the participation of individuals who have had access to the Confidential Information or (v) is required to be disclosed by court order or applicable law, provided reasonable prior notice is gi ven to the Licensor. The Licensee shall not obtain, by virtue of this Agreement, any 3749 right,, title or interest in any Confidential Information of the Licensor. Within fifteen (15) days after termination of this Agreement, each party shall certify in writing to Licersor that all copies of Licensor's Confidential Information in any form, including partial copies, have been destroyed or returned to Licensor. (b) Licensor acknowledges that the Licensee is a governmental agency and may be required to release certain information under requests made according to provisions of the Public Records Act. (c) Recif lent shall protect the deliverables resulting from Services with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Recipient utilizes for Recipient's Confidential Information. (d) The terms of this Section 12 shall survive termination of this Agreement. Licensor and Licensee acknowledge that any breach of this Section 12 by Licensee will irreparably harm Licensor. Accordingly, in the event of a breach, Licensor is entitled to promptly seek injunctive relief in addition to any other remedies that the disclosing party may have at law or in equity. 13. RELATIONSHIP BETWEEN THE PARTIES Licensor is, and at all times shall remain, an independent contractor solely responsible for all acts of its employees, agents, or sub consultants, including any negligent acts or omissions. Licensor is not Licensee's agent, and shall have no authority to act on behalf of the Licensee, or to bind the Licensee to any obligation whatsoever, unless the Licensee provides prior written authorization to Licensor. Licensor is not an officer or employee of Licensee and Licensor shat l not be entitled to any benefit, right, or compensation other than that provided in this Agreement. 14. CO NFLICTS OF INTEREST PROHIBITED Licensor (including its employees, agents, and sub Licensors) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. 15. COMPLIANCE WITH LAW AND STANDARD OF CARE 3749. , Licensor shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressl,l stated in this Agreement. Licensor- shall perform services under this Agreement using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Licensor, perfonning under circumstances similar to those required by this Agreement. Licensor certifies that its employees have the training and experience to perform and complete all services mentioned herein and outlined in Exhibit "A ". 17. REPORTING DAMAGES If any damage (including death, personal injury or property damage) occurs in connection with the performance of this Agreement, Licensor shall immediately notify the Licensee Risk Manager's office and Licensor shall promptly submit to the Licensee's Risk Manager and the Licensee's Authorized Representative, a written report (in a form acceptable to the Licensee) with the following information: (a) name and address of the injured or deceased person(s), (b) name and address of witnesses, (c) name and address of Licensoe's insurance company, and (d) a detailed description of the damage and whether any Licensee property was involved. 18. SIGNATURES The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Licensor and the Licensee. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the Licensee and Licensor do hereby agree to the full performance of the terms set forth herein. Licensor: (SiMature) Randy D. Burkhammer Vice President, Coplogic, Inc. Date: lltl"70 7 Jeff Stewart, City Manager (Typed or Printed Name) Date: B,(-/' ' � ;749•..' Exhibit A Scope of Work Licensor has designed and built an Online Reporting System for Police Departments that provides data to a specified database structure. The Online Reporting System uses the J2EE standard. The system is designed to gather information on crimes from a member of the general public (user) via an SSL connection. The application will issue a temporary report number to the user and place the temporary report into an administrative holding area for review and modification by appropriate administrator. An email is generated to the user that the report has been submitted. The administrator logs in via an SSL connection approves rejects, edits or prints reports as appropriate. Rejecting a report deletes 11 from the system and sends an appropriate email to the user. Approving the 3749 . , report issues a case number, places it in a cue to be exported, and sends an email to the user. Th.- administrator can download the approved report or print the report out. A. Setup and Customization Licensee Responsibilities: 1. Coordinate with Licensor to establish schedule for deployment. 2. Provide website header image and one small image for temporary citizen report and one small image for final printed PDF report, which is automatically emailed to citizen after report approval. 3. Load provided HTML pages onto City server which links to Licensor's servers for the application. 4. Provide Licensor with the scherna for the desired file format and /or Database schema and account with read /write access and test environment, immediately upon availability. 5. Provide Licensor with VPN access to the exporter, RMS application(s) immediately upon availability. 6. Provide timely responses to Licensor's questions, which may arise during the setup and customization process. Licensor's Responsibilities: 1. Coordinate with Licensee to establish schedule for deployment. 2. Load provided images onto the Licensor's secure, redundant network and register Licensee within the network. 3. Provide Licensee with Administrator password and credentials for the program. 4. Provide sample operational directives, deployment strategies and sample press release. 374 9 . , , z a. Licensor will provide contact personnel at other cities currently using the system as well as provide suggestions for the deployment of the systern. b. Licensor will provide instructions on the easy setup of a kiosk Ior City Police Department Headquarters lobby, etc. Completion Criteria: T:.iis task is considered complete after Licensor has delivered listed materials and tte software is active and accessible on the Licensee's website. B. Software Configuration Licensee's Responsibilities: 1. Coordinate with Licensor for web training session on administering the program, using the dynamic creation tools, "Triple Lock" login features, user account including deploying the "Secure side filing feature ". 2. Using the administrator account, login in and configure the code tables, crime types, user account, and dynamic content for Licensee. 3. Test the interface with the Report Writing /RMS application, dependent upon availability. 4. Review resulting files with Licensor, document any problems, and collaborate with Licensor on a plan for corrective action(s). Licensoe's Responsibilities: 1. Coordinate with Licensee for web training session on administering the program, using the dynamic creation tools, "Triple Lock" login features, user account including deploying the "Secure side filing feature ". 3749. , 2. Configure export routine for the RMS Interface, dependent upon availability. 3. Review resulting files with Licensee, document any problems, and collaborate with Licensee on a plan for corrective action(s). Completion Criteria: This i ask is considered complete when the Desk Officer Online Reporting System is accessible on the web server, reports can be f►l .-d, reviewed, and printed. C. Continuing Maintenance: Licensor will provide remote application support and updates in accordance with the Support and Maintenance Agreement.