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CONTRACT 2774A AmendmentAMENDED SOFTWARE MAINTENANCE AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND PROGRESSIVE SOLUTIONS, INC. This AGREEMENT is entered into this 16th day of October, 2001, by and between the CITY OF EL SEGUNDO, a general law city and municipal corporation ( "CITY ") and PROGRESSIVE SOLUTIONS, INC., a California Corporation ( "PROGRESSIVE "). 1 RECITALS. This Agreement is made with reference to the following facts and objectives: A. The Parties to this Agreement entered into a Software Maintenance Agreement on or about April 4, 2000 identified as Agreement No. 2774 ( "Software Contract "); B. On or about July 6, 2001, PROGRESSIVE informed CITY that it would increase its fee for software maintenance, but that this annual fee would not increase until 10/1/2006; C. CITY believes that it is in the public interest to continue its business relationship with PROGRESSIVE with certain conditions; D. The Parties to this Agreement agree to amend the prior Software Maintenance Agreement as specified in this Agreement. 2 NATURE OF SUPPORT. PROGRESSIVE provides software support services and CITY desires to obtain software support services for the software identified in this Agreement. 3 TERM; RENEWAL. The term of this Agreement will be until 5pm, September 30, 2002 unless terminated as provided below. The Agreement will be automatically renewed for a subsequent year if CITY pays PROGRESSIVE's annual support fee. 4 CITY'S RIGHTS AND OBLIGATIONS A. CITY during the term of this Agreement will designate one employee as a primary contact for each software system. Additional contacts may be designated up to the number defined under Section 7. These `Software Support' contacts should know the system, use the system, and be responsible for the results of the system. These persons will also provide the initial interface with PROGRESSIVE's support personnel, accept software updates and arrange for software update installation. CITY accepts and understands that if software upgrades are not installed within six (6) months from receipt or within six (6) months from the release date Page 1 of 9 whichever is earlier, PROGRESSIVE will be under no obligation to continue any `Software Support' services. B. CITY agrees to implement corrections to known software problems, which have been identified as necessary by PROGRESSIVE. Failure to implement those identified software corrections will relieve PROGRESSIVE from any and all `Software Support' responsibilities. In such event, any subsequent services will only be provided on an emergency time and materials basis. C. CITY agrees to maintain working remote access (via- Symantec'sTM pcANYWHERETM and a Virtual Private Network -VPN connection) to the licensed software and data. In addition, CITY agrees that the designated workstation will meet the following minimum requirements: Pentium 100 or faster processor, Windows 95/98/NT, and completed installation of (licensed software, PCanywhere and Microsoft Access). In the event PROGRESSIVE deems such access necessary, PROGRESSIVE will request confirmation that such access is available. Upon receipt of such confirmation, PROGRESSIVE will attempt remote access. If remote access is not functional despite CITY's confirmation of functional remote access, PROGRESSIVE will provide remote access verification services free of charge for one time during each annual agreement. Should CITY require remote access verification services in excess of the one free service, CITY will request approval for payment prior to providing remote access verification. The remote access verification fee compensates PROGRESSIVE for assistance in setting up and verifying remote access operation. In the event remote access is not and will not be available in the course of PROGRESSIVE's attempts to provide `Software Support' services, CITY understands that PROGRESSIVE's ability to provide support will be severely limited. Should CITY desire emergency support, on -site support services are available at PROGRESSIVE's current support rate plus expenses for each partial or full day required to provide `Software Support' services. D. CITY understands and acknowledges that network performance is solely the responsibility of CITY. Should any questions arise as to whether a performance issue is software or network related, CITY agrees to isolate the appropriate workstations and servers on one hub and to test the Licensed software in an environment totally separate from any and all other network communications. E. CITY assumes any and all responsibility and liability for any modification to the Licensed software not made by PROGRESSIVE. If an error condition is not a Licensed software error or that the error condition results from a CITY modification to ahe Licensed software, CITY agrees Page 2 of 9 IkI u P to pay PROGRESSIVE for reasonable services necessary to correct the error at the rates in effect at the time of service plus reasonable expenses. 4 PROGRESSIVE'S RIGHTS AND OBLIGATIONS. A. During the term of this Agreement, PROGRESSIVE will provide CITY with unlimited telephone support services relating to software fixes and the dissemination of workaround solutions. In addition, PROGRESSIVE will provide CITY with any updates and/or minor enhancements to Licensed software, which may become available from PROGRESSIVE without additional charge. For multi -user Licenses, PROGRESSIVE will send one copy of the digital media (the licensed application) per release cycle to CITY's designated representative. This person will distribute copies of the Licensed software to those responsible for any additional Licensed computer systems. B. During the term of this Agreement, PROGRESSIVE will provide CITY with limited voice, facsimile, modem, and mail communications as appropriate for training related support. Training support is defined as providing information to current and prospective users of the Licensed software on operational or functional aspects defined in the current user documentation. This support will be provided to the person designated by CITY (or an alternate in the absence of the designated caller). The designee will know the Licensed software, use the Licensed software and be responsible for the results of their efforts. Training related support in excess of thirty (30) minutes per call will be billed at the rate in effect at the time of service. Prior to and as a condition of PROGRESSIVE's right to bill for training services, PROGRESSIVE will inform CITY that the free training support is over and that any additional training will be billable. PROGRESSIVE reserves the right to limit the number land the duration of these communications. C, Nothing contained in this Agreement will be construed to obligate PROGRESSIVE to provide any services whatsoever subsequent to the expiration of this Agreement or any subsequent renewals of this Agreement. Upon expiration of this Agreement, CITY may purchase continued `Software Support' services on an annual basis. The price(s) specified in section 7 is (are) the current price(s) for `Software Support' services. Subject to the provisions of Section 7, PROGRESSIVE agrees to provide at least 30 days prior written notification prior to implementation of any fee change. Any fee change will not be effective until the first day of any annual extension. 5 INSURANCE REQUIREMENTS. PROGRESSIVE will provide and maintain insurance acceptable to the City Attorney in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may Page 3 of 9 Ai 7 71 ,� J,� m uu air y arise from or in connection with the performance of the work hereunder by Lisensor, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. PROGRESSIVE will provide the following scope and limits of insurance: A. Minimum Scope of Insurance. Coverage will be at least as broad as: 1. Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). 1 Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the written approval of the City. 1 Workers' Compensation insurance as required by the Labor Code of State of California and Employer's Liability insurance and covering all persons providing services on behalf of the PROGRESSIVE and all risks to such persons under this Agreement. (Not needed if Self-employed with no employees.) B. Minimum Limits of Insurance. PROGRESSIVE will maintain limits of insurance no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit will apply separately to the activities related to this Agreement or the general aggregate limit will be twice the required occurrence limit. 1 Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation and Employer's Liability: Workers' Compensation as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. C. Other Provisions. Insurance policies required by this Agreement will contain the following provisions: 1. All Policies. Each insurance policy required by this paragraph will be endorsed and state the coverage will not be suspended, voided, canceled by the insurer or either party to this Agreement, reduced Page 4 of 9 in coverage or in limits except after 30 days' prior written notice by Certified mail, return receipt requested, has been given to the City. 2. General Liability and Automobile Liability Coverages. (i) City, its officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities PROGRESSIVE performs, products and completed operations of Licesor; premises owned, occupied or used by PROGRESSIVE, or automobiles owned, leased or hired or borrowed by PROGRESSIVE. The coverage will contain no special limitations on the scope of protection afforded to City, its officers, officials, or employees. (ii) PROGRESSIVE's insurance coverage will be primary insurance as respect to City, its officers, officials, employees and volunteers. Any insurance or self insurance maintained by City, its officers, officials, employees or volunteers will apply in excess of, and not contribute with, PROGRESSIVE's insurance. (iii) PROGRESSIVE's insurance will apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (iv) Any failure to comply with the reporting or other provisions of the policies including breaches of warranties will not affect coverage provided to the City, its officers, officials, employees or volunteers. 3. Workers' Compensation and Emplover's Liabilitv Coverase. Unless the City Manager otherwise agrees in writing, the insurer will agree to waive all rights of subrogation against City, its officers, officials, employees and agents for losses arising from work performed by PROGRESSIVE for City. D. Other Requirements. PROGRESSIVE agrees to deposit with City, at or before the effective date of this contract, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that PROGRESSIVE furnish City with copies of original, endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time. Page 5 of 9 '�,l ,7 L PROGRESSIVE will furnish certificates and endorsements from each subcontractor identical to those PROGRESSIVE provides. 1 Any deductibles or self - insured retentions must be declared to and approved by City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self - insured retentions as respects the City, its officers, officials, employees and volunteers; or the PROGRESSIVE will procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. 3. The procuring of such required policy or policies of insurance will not be construed to limit PROGRESSIVE's liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement. 6 INDEMNIFICATION. A. PROGRESSIVE agrees to hold CITY harmless and indemnify CITY from any damages arising from PROGRESSIVE's performance under this Agreement except for CITY's active negligence. PROGRESSIVE agrees to defend CITY, at CITY's request, from any suit or claim where PROGRESSIVE's Licensed Software allegedly infringes upon intellectual property of a third - party. B. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers. 7 SUPPORT FEES AND PAYMENTS. A. The annual fee for Software Support services is $14,266.40 for an unlimited number of users. PROGRESSIVE agrees not to increase the amount of this fee until, at a minimum, October 1, 2006. PROGRESSIVE agrees to lower the Software Support service fee in the event that their client revenue increases due to additional customers. B. Payment for `Software Support' services is due in advance. `Software Support' services will not be provided until such advance payment has been received. 8 LICENSED SOFTWARE ESCROW ACCOUNT, A. PROGRESSIVE agrees to place the operating code of the Licensed Software in escrow with ParkGlenCMI ( "Escrow Holder "). Page 6 of 9 B. Subject to the provisions of this Section, Escrow Holder will deliver the operating code of the Licensed Software to CITY should PROGRESSIVE 1. Discontinue the Licensed Software; 2. Terminate Software Support for the Licensed Software, or 1 Declare bankruptcy C. CITY understands and agrees that Escrow Holder will only deliver the operating code of the Licensed Software upon receiving a source code license fee equal to either $50,000 or the fair market value (as determined by a third -party appraiser), whichever is lower, less a prorated credit for any remainder of Software Maintenance Support that cannot be provided because of a triggering event. D. CITY's acquisition of the operating code of the Licensed Software is restricted to CITY's own use. CITY agrees not to transfer the operating code of the Licensed Software, or its documentation, to any third -party except as provided by law. E, In the absence of any triggering events or if CITY terminates this Agreement, the escrowed operating code will be retained by PROGRESSIVE. F. Both CITY and PROGRESSIVE agree to indemnify and defend Escrow Holder from any and all claims arising from expectations not identified in this section. 9 GENERAL PROVISIONS. A. The Licensed software is subject to design and operational changes to allow for the use of new technologies and to correct known bugs as they are brought to the attention of the PROGRESSIVE, either by the CITYs own quality - control mechanisms or by the CITY. B. CITY acknowledges that the Licensed software is of such complexity that it may have inherent defects and agrees that as CITYs sole liability for such inherent defects and as CITY's sole remedy for such inherent defects, PROGRESSIVE will provide, during the term of this Agreement, all reasonable maintenance services to correct documented programming or documentation errors reported by CITY which are caused by a defect in an unaltered version of the delivered Licensed software. C. CITY acknowledges that annual software maintenance is designed to ensure quality support for all users of both Licensed software and forms Page 7 of 9 designed, created and/or maintained by PROGRESSIVE as part of the released software. PROGRESSIVE utilizes Seagate's Crystal Report WriterTM to create most reports and forms. To ensure maximum flexibility, customers are provided with the option to design, create and maintain additional forms, mailings, and/or reports. PROGRESSIVE's annual software maintenance does not include the provision of technical support for user written customized Crystal ReportsTM. However, PROGRESSIVE is pleased to offer support on a cost per incident basis. D, This Agreement and any written modifications, amendments or addenda, executed pursuant to this Agreement constitute the entire agreement between the parties and supersede all previous agreements, including Agreement No. 2774, negotiations and other proposals, oral or written, and all previous and current negotiations and other communications between the parties. The obligations set forth in this Agreement will be construed in accordance with and governed by the laws of the State of California. This Agreement may be signed in several counterparts, each of which will be deemed an original. E. Any change or revision to the terms and conditions hereof will be made by written amendment and will be executed by persons authorized to do so by the respective parties. No changes in specifications, requested or suggested by either party, will be made except by written agreement of both parties. 10 EXECUTION. This agreement will become effective on the date it is fully executed. PROGRESSIVE: PROGRESSIVE SOLUTIONS, INC. P. O. BOX 783 BREA, CA 92822 [Signatures on next page] Page 8 of 9 CITY: CITY OF EL SEGUNDO 350 MAIN ST. EL SEGUNDO, CA 90245 IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF EL SEGUNDO, a general law city. MiWy 91'�e 1�t City N4ailwgej* A'ITES'r4' Cindy M City C16 APPROVED AS TO FORM- Mark D. Hensley, City,A,66T, By: Wiii•l H. Berger, Assistant City Att 0! /11� PROGRESSIVE SOLUTIONS, INC., a California Corporation. Glenn R. Vodhanel, President Taxpayer ID No. Page 9 of 9