Loading...
HomeMy WebLinkAbout10/18/2006 - STAFF REPORTS - 2.S. e 7ALMSp CITY COUNCIL STAFF REPORT DATE: OCTOBER 18, 2006 CONSENT CALENDAR SUBJECT: PROFESSIONAL SERVICES SOFTWARE LICENSE AGREEMENT • WITH CYRUN FOR THE COMPUTER-AIDED DISPATCH AND RECORDS MANAGEMENT SYSTEM FROM: David H. Ready, City Manager BY: Palm Springs Police Department SUMMARY The City Council will consider approving an Application Software Support and Maintenance Agreement with Cyrun for the Computer-Aided Dispatch and Records Management System approved by the City Council on June 7, 2006. RECOMMENDATION: 1. Adopt Minute Order No. Approving a Professional Services Software License Agreement with Cyrun for the Computer-Aided Dispatch and Records Management System. A 2. Authorize the City Manager to execute all necessary documents. STAFF ANALYSIS: On June 7, 2006, the City Council approved the purchase of a Computer-Aided Dispatch (CAD) and Records Management System (RMS) from Cyrun for the Palm Springs Police Department. The City Council authorized the project cost of $298,730 which was funded by grants from the Federal Buffer Zone Protection Program ($240,000), Bureau of Justice Assistance ($48,229), and Local Law Enforcement Block (LLEBG) ($10,501). In accordance with the purchase, Cyrun reduced the cost to purchase the system and the City is required to enter into a five (5) year support agreement. The City routinely enters into support and maintenance agreements with the original contractor to Item No. Z . S . City Council Staff Report October 18, 2006 -- Page 2 Cyrun Maintenance Agreement maximize and realize support services and ensure current upgrades are incorporated into the City's system. The cost of the support and maintenance agreement is $60,290 per year, or $301,450 for the five (5) year agreement. The cost of the maintenance agreement for the first year was included in the original purchase price authorized by the City Council. FISCAL IMPACT: The City Council authorized the purchase of the system which included the cost of the support and maintenance agreement for the first year, using various grant funds outlined earlier in this report. The future four years maintenance cost of $60,290 per year will be budgeted in the Police Department in the respective fiscal years. oe 4GaJJFb'n, Police Chief David H. Ready, City er Attachments: Minute Order Agreement I MINUTE ORDER NO. APPROVING A PROFESSIONAL SERVICES SOFTWARE LICENSE AGREEMENT WITH CYRUN FOR THE COMPUTER-AIDED DISPATCH AND RECORDS MANAGEMENT SYSTEM. A I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, hereby certify that this Minute Order, Approving a Professional Services Software License Agreement with Cyrun for the Computer-Aided Dispatch and Records Management System, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held the 18th day of October, 2006. James Thompson, City Clerk City of Palm Springs, California �1 f : CYRUN APPLICATION SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT FOR PALM SPRINGS POLICE DEPARTMENT , Cyrus Initials:��� Customer Initials: TABLE OF CONTENTS PAGE 1. Definitions..........____...................... ............................... 1 2. Maintenance Services.........................................._................. 2 3. External System Modifications.................................................. 6 4. Telephone Support-•............................................................... 6 5. Customer Responsibilities........................................................ 7 6. Remote and On-Site Maintenance............................................. 7 7. Term.................................................... 7 8. Price and Payment........................................ ..................... 7 9. Proprietary Rights.............................. ................................. 8 10. Copyright and Reproduction.........................•.......................... 8 11. Limited Warranty and Disclaimer............................................... 8 12. Limitation of Liability__..... ...................... ------------- 9 13. Uncontrollable Conditions................................................... 9 14. Confidential information...................................................... 9 15. Taxes.....--------.........................................._..................... 10 16. Patent and Copyright Indemnity............................................. 10 17. Assignment....................................................................... 10 18. Legality.............................. •. . ........................................ 10 19. Choice of Law, Venue, and Jurisdiction.................................... 10 20. Equitable Relief ................. . ..................................... 11 21. Validity.................• . .................................----............... 11 22. Attorney's Fees................................................................... 11 23. Termination....................................................................... 11 24. Representative and Notices................................................... 11 25. Insurance........................................................................... 12 26- Independent Contractor.................................. ............ ... 12 27. Waiver................................................................ ............ 12 28. Headings...................... •------............................................. 12 29. Corporate Authority............................................................. 12 Page t of ii Palm Springs AD t fh Support and Maintenance Agreement Cyrun Initials! Customer Initials: 30. Additional Services............... .............................. ............... 13 �` Page ii of ii Palm Springs PD Sot are Support and Maintenance Agreement Cyrun Initials: Customer Initials: I CYRUN APPLICATION SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT 2 3 This APPLICATION SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT 4 ("Agreement") is entered into as of October 9, 2006 by and between the City of Palm Springs 5 ("Customer"), located at 200 South Civic Dr., Palm Springs, CA 92263 and Cyrun, a 6 corporation organized under the laws of the State of California ("Cyntn"), located at 125 Water 7 Street, Suite A2, Santa Cruz, CA 95060, as an addendum to the PROFESSIONAL SERVICES 8 AND SOFTWARE LICENSE AGREEMENT ("Software License Agreement") entered into as 9 of the same date by and between the same parties. This agreement may refer to Cyruu and 10 Customer as the"parties," or may to refer to Cyrun or Customer as"party" to the Agreement. 11 12 TERMS AND CONDITIONS 13 14 hi consideration of the mutual covenants and conditions hereinafter set forward, the 15 parties agree as follows: 16 17 1. Definitions. As used in this Agreement, unless the context otherwise requires, the 18 following terms shall have the meanings set forth below: 19 a. Cyrun APPLICATION SOFTWARE The term"Cyrun Application Software" 20 means any software owned and licensed by Cyrun and installed as a part of the 21 System, whether in machine readable or printed form, including any 22 Customization Modifications, or Updates, and all related Documentation. The 23 term may be used as representative of all Cyrun Application Software and 24 modules or subcomponents thereof(i.e_, modules, interfaces). 25 b. Cyrun CUSTOM SOFTWARE shall mean any Cyrun code,modules or 26 applications that are customized, modified or developed specifically for Customer 27 under the terns of the Software Licenses Agreement, whether in machine 28 readable or printed form. 29 C. LICENSED SOFTWARE shall mean all Cyrun APPLICATION SOFTWARE, 30 and Cyru t CUSTOM SOFTWARE (including without limitation, the design 31 thereof, documentation and other information relating thereto, copyright, patent, 32 trade secret,trademark, and other intellectual and proprietary rights therein) 33 which are furnished as part of the SYSTEM and licensed under the provisions of 34 the Software License Agreement. 35 d. THIRD PARTY APPLICATION SOFTWARE shall mean any software product 36 manufactured by a third party which is resold to Customer as part of the 37 SYSTEM. 38 e. T141RD PARTY HARDWARE shall mean computer hardware manufactured by a 39 third party which is resold by Cyrun to Customer as part of the SYSTEM. 40 f. MAINTENANCE RELEASE shall mean an update to the LICENSED 41 SOFTWARE which repairs any known or discovered problems in SYSTEM 42 operation or performance. 43 g. ENHANCEMENT RELEASE shall mean an update to the LICENSED 44 SOFTWARE which either extends the capabilities of existing system functions 45 and features, or adds new minor functional components. A Customer who has 46 received and installed all available ENHANCEMENT RELEASES shall be said 47 to be operating the CURRENT ENHANCED RELEASE. Pagc 1 of 13 Palm Springs PD S Rw Ye Support and Maintenance Agreement 9/7/06 Cyront Initials: Customer Initials: I h. MAJOR VERSION CHANGE is defined as a significant revision of the system 2 architecture, including but not limited to: operating system changes; client./server 3 database changes; interface modifications; change of programming language. 4 i. MAJOR VERSION LEVEL shall mean the particular whole number increment 5 assigned to a given release of Cyrun APPLICATION SOFTWARE or 6 APPLICATION SOFTWARE MODULES (e.g. Lx, 2.x, etc.). 7 j. SYSTEM shall mean the collective whole of all computer software and hardware 8 licensed and/or resold by Cyrun to Customer under the terns of the Software 9 License Agreement, including without limitation, any subsequent software 10 improvements and updates, as defined in subparagraphs a through j, above. I I k. Warranty Period. The term "Warranty Period"means (a) with respect to Cyrun. 12 Application Software the thirty(30) day period following the date of Final System 13 Completion by Palm Springs Police Department, and (b) with respect to Third- , 14 Party Software and Hardware, the applicable warranty period provided by the 15 respective manufacturer upon installation. 16 17 2" Maintenance Services. During the term of this Agreement, subject to the terms and 18 provisions of this Agreement, Cyrun shall maintain the Cyrun Application Software as 19 follows: 20 a. Promptly upon the release of any MAINTENANCE RELEASE to the 21 LICENSED SOFTWARE developed by Cyrun, Cyrun shall furnish said update to 22 Customer at no additional cost, provided that Customer has paid the annual fee set 23 forth in paragraph 8 below, for enrollment in Cyrun's Comprehensive Services 24 Plan, as described below. 25 b. Promptly upon the release of any ENHANCEMENT RELEASE to the 26 LICENSED SOFTWARE developed by Cyrun, Cyrun shall furnish said update to 27 Customer at no additional cost, provided that Customer has paid the annual fee set 28 forth in paragraph 8 below, for enrollment in Cyrun's Comprehensive Services 29 Plan as described below. If CUSTOMER has not elected and paid the annual fee 30 for the Comprehensive Services Plan, Cyrun will offer ENHANCEMENT 31 RELEASES to Customer for a license and installation fee to be quoted by Cynm 32 at the time of availability of said ENHANCEMENT RELEASE. 33 C. Promptly upon the release of any MAJOR VERSION CHANGE to the 34 LICENSED SOFTWARE developed by Cyrun, Cyrun shall offer said update to 35 Customer for a license and installation fee to be quoted by Cyrun at the time of 36 availability of said MAJOR VERSION CHANGE. 37 d. Installation of MAINTENANCE RELEASES, ENHANCEMENT RELEASES, or 38 MAJOR VERSION C14ANGES will be scheduled with the CUSTOMER in 39 advance, and proper data back-up and security procedures will be followed to 40 assure a smooth transition with minimal loss of service. 41 e. When installing MAINTENANCE RELEASES, ENHANCEMENT RELEASES, 42 or MAJOR VERSION CHANGES, Cyrun will endeavor to ensure that all 43 existing data files will be usable or convertible to the release being installed. 44 f. Prior to license or installation of any MAINTENANCE RELEASE, 45 ENHANCEMENT RELEASE, or MAJOR VERSION CHANGE, Cyrun shall 46 notify Customer of any required addition or upgrade of third-party software or Page 2 of 13 Palm Springs PD 0 Support and Mainvu nce Agreement 9/7/06 Cyrun Initials: Customer Initials- I hardware. The expense of such required additions or upgrades shall be born by 2 Customer. 3 g. Cyrun shall promptly correct at its expense any problem in the unaltered 4 SYSTEM which prevents the SYSTEM from performing in substantial 5 conformance with Cyrun's response to the Customer's Request for Proposal, 6 subject to the following conditions and limitations: 7 (1) Customer shall identify and notify Cyrun of the problem to be corrected in 8 accordance with the Technical Support Use and Response Guidelines 9 contained in this document. 10 (2) The problem can be duplicated. 11 (3) The problem is caused by a bug or defect attributable to the unaltered 12 SYSTEM, as differentiated from any cause external thereto. 13 (4) Due to the complex nature of computer software, Cyrun does not represent 14 that the LICENSED SOFTWARE is compatible with all equipment or 15 software configurations; and hence, Cyrun's obligation to correct 16 problems does not cover any component of the SYSTEM used in other 17 than its customary mariner, or to any defect that results from any 18 mishandling, abuse or improper storage of any of the components of the 19 SYSTEM, including use of the SYSTEM in conjunction with any 20 equipment which is electrically or mechanically incompatible with or of 21 inferior quality to the components of the SYSTEM, or failure to maintain 22 the environmental conditions specified by the manufacturers of the 23 components of U-Ie SYSTEM. 24 (5) Promptly upon notification by Customer, Cyrun will diagnose the problem 25 to determine whether or not its cause is a bug or defect attributable to the 26 unaltered SYSTEM, as differentiated from any cause external thereto_ If 27 the problem is diagnosed to be caused by a source external to the 28 SYSTEM, Customer shall be billed at Cyrun's then current time and 29 materials rates for all diagnostics and problem determination. 30 (6) Upon a MAJOR VERSION LEVEL change, Cyrun shall only be 31 responsible to provide maintenance and support services for Customer's 32 installed MAJOR VERSION LEVEL for a period of I years after release 33 of the last ENHANCEMENT RELEASE thereof. At its option, Cyrun 34 may then terminate its obligations under this Agreement by written notice 35 thereof to Customer. Thereafter, any maintenance and support services 36 will be provided and billed at Cyrun's then current time and materials 37 rates. 38 (7) Cyrun is obligated to correct problems only to the unaltered SYSTEM. 39 Any change or modification to the SYSTEM or dxe operating environment 40 specified by Cyrun or other manufacturers of the components of the 41 SYSTEM, without Cyrun's written pennission, is a violation of this 42 Agreement; in which event, at its option, Cyrun may terminate its 43 maintenance obligations under this Agreement by written notice thereof to 44 Customer. Thereafter, any maintenance services will be provided and 45 billed at Cyrun's then current time and materials rates. Page 3 of 13 Patin 517rings PO So � and d Maintenance Agrecmont 9/7/06 Cyrus Initials:lIN� _ Customer Initials: 1 (8) If Cyrun corrects any problem from a cause external to the SYSTEM, the 2 service will be provided and billed at Cynin's then current time and 3 materials rates. 4 (9) Nonpayment by Customer for any maintenance service provided and 5 billed hereunder by Cyrun shall constitute a breach of this Agreement and 6 in addition to any other remedies available, Cyrun may withhold 7 performance of other services hereunder until payment is made. 8 9 h. Support Services 10 CYRUN supports and warrants its products on a yearly basis. I (1) Comprehensive Services Plan: 12 (a) Emergency technical support and remote-control troubleshooting 13 available 24 hours a day 14 (b) All Enhancement Releases to Cyrun Application Software 15 (c) Installation of all Maintenance Releases to Cyrun Application Software 16 (d) Updates and replacement of Cyrim Application Software 17 documentation 18 (e) Membership to CYRUN's ALLIANCE User Group 19 (2) Technical Support Use and Response Guidelines 20 (a) CYRuN authorizes the use of its technical support service to two 21 customer staff members (generally the Support Services Technician and 22 their back-up system administrator) plus whatever most senior CYRUN - 23 trained supervisor is on-duty during a Critical Problem situation (see 24 below definitions). The goal is to assure that user questions are first 25 reviewed by qualified on-site personnel. 26 (b) Technical support hours for operational questions and Non-Critical 27 Problems are 9:00 a.m. to 5:00 p.m. Pacific Time, Monday through Friday 28 (closed on observed national holidays). Most operational questions will 29 be answered immediately, and Non-Critical problems will be documented 30 at the time of call. If a support engineer is not available for immediate 31 consultation, CYRUN will contact customer within one business day. 32 (3) Critical Problem Resolution 33 (a) CYRUN defines a Critical Problem condition as existing when a Cyrun 34 Application Software module becomes largely dysfunctional, such that 35 some portion of Department computing operations are suspended. For 36 conditions believed to be Critical, a CYRUN engineer may be reached 24 37 hours a day via alphanumeric pager, with a call-back within one hour. 38 (b) If the CYRUN engineer and the authorized customer representative- 39 upon reviewing the system status—agree that a Critical Problem exists, 40 the problem will be remedied via remote computing hook-up or a senior 41 engineer will arrive for on-site resolution. The timeframe for dispatching 42 an engineer to the client site for Critical Problems varies based on the 43 portion of the system affected. The guidelines—from date and time of 44 notification to arrival on-site—are as follows: 45 (1) Computer-Aided Dispatch—within 32 hours 46 (2) Officer Reports—within 3 days 47 (3) Records Management—within 5 days Page 4 of 13 Palm Springs PD S c Support and Maintenance Agreement 9/7/06 Cyrun initials:o ,,, ,_ Customer Initials: 1 (4) All other modules and SYSTEM functions—within 5 days 2 (4) Migration and Upgrade Policies 3 (a) As the Cyrun Application Software continually undergo refinement 4 and enhancement, there is no set schedule for updates_ Installation of new 5 software will be scheduled with the client in advance, and proper back-up 6 and security procedures will be followed to assure a smooth transition 7 with no loss of service. 8 (b) When installing maintenance releases, enhancements, or version 9 upgrades, CYRUN will ensure that all existing data files will be usable or 10 convertible to the release being installed. Training materials and 11 documentation updates will be provided as appropriate to accompany 12 installation of new software releases. If a new software release requires 13 addition or upgrade of third-party software or hardware, costs for purchase 14 of such will be borne by the Customer. 15 (c) Sites wishing to license Optional Cyrun Application Software Modules 16 who are not currently enrolled in the Application Software Support and 17 Maintenance Agreement may be required to pay upgrade/update fees to 18 bring their Cyrun Application Software up to the current Major Version 19 (see below). Upgrade fees will be based on a combination of factors 20 including Customer's original system license, estimated conversion labor 21 from presently installed version, and current new system license price 22 schedules. 23 (d) The Application Software Support and Maintenance Agreement 24 includes no-charge license and installation of Licenses Software 25 Maintenance Releases. 26 (e) Only the Application Software Support and Maintenance Agreement 27 includes no-charge license and installation of System Enhancement 28 Releases. An Enhancement Release is defined as an extension of existing 29 functional system elements and additions of new minor functional 30 components. A site which has received all available Enhancement 31 Releases for their Major Version is said to be operating the Current 32 Enhanced Release_ 33 (f) Major Version Changes to the Cyrun Application Software Modules 34 will not normally be provided as part of either Services Plan. CYRUN may, 35 at its sole discretion, choose to offer such version upgrades at no-charge to 36 clients enrolled in the Application Software Support and Maintenance 37 Agreement. 38 39 3. External System Modifications. Cyrun shall not be responsible for changes and/or 40 modifications to any external systems or the installation of any new external systems 41 which occur subsequent to Final System Completion as defined in the Professional 42 Services and Software License Agreement. In order to remain on the Cyrun maintenance 43 program provided in the Agreement, compatibility of the SYSTEM with external systems 44 must be maintained. In the event that any external system is modified subsequent to said 45 final acceptance, Customer shall notify Cyrun in writing of any such change or 46 modification immediately upon receipt of notification from the respective agency, and 47 request that Cyrlm prepare a proposal to include a time and cost estimate for modification Pa�c 3 of 13 Palm Springs PD S Support and Nl2imcnance Agreement 9/7/06 Cyrun Initials: Customer Initials: I of the SYSTEM to make it compatible with the change or modification to the external 2 system. As promptly as possible after such notification, Cyrun shall furnish a written 3 proposal to Customer to modify the SYSTEM to make it compatible with the external 4 SYSTEM, provided the required modifications are commercially, technically and 5 practically feasible. On receipt of Cyrun's proposal, Customer shall determine whether it 6 requires the work to be performed, and if so, shall issue a written Notice to Proceed, at 7 which time Cyrun shall perform the necessary modifications .For the additional 8 compensation mutually agreed upon in writing by the parties. In the event Customer 9 does not issue a written Notice to Proceed, Cyrun shall not be responsible for any 10 incompatibility with or disconnection from the external system. 11 12 4. Telephone Support. Anticipating that many perceived problems with the Cyrun 13 Application Software Modules may be corrected by telecommunications, Cyrun has 14 instituted Cynm Immediate Response Telephone Support ("CIRTS"). Calls by Customer 15 to CIRTS will be accepted by Cyrun from 9:00 a-m_ Pacific time to 5:00 p.m. Pacific 16 time, Monday through Friday, (closed on observed national holidays)_ Responses to such 17 calls from Cyrun will be provided during the same time frame. Cyrun shall use its best 18 efforts to resolve problems promptly, and by telecommunications where feasible. 19 Customer shall designate in writing to Cyrun by name no more than two of its employees 20 as official representatives of Customer to use CIRTS. Perceived problems with the 21 SYSTEM shall be reported only by said designated employees on CIRTS. Cyrun 22 reserves the right to bill for Customer abuse of the CIRTS service. Refer also to the 23 Technical Support Use and Response Guidelines contained in this document. 24 Examples of Customer abuse may include, but not limited to: 25 Un-authorized personnel calling CIRTS. 26 Call repeatedly made to CIRTS related to LAN/WAN or 27 other non-Cyrun related components. 28 29 5. Customer Responsibilities. Customer shall be responsible, without limitation, for the 30 following: 31 a. At its expense, Customer shall install and maintain for the duration of this 32 Agreement computer hardware, communication equipment, telephone lines, 33 cabling dial-back modem, VPN and all other reasonably necessary 34 communications equipment to enable Cyrun, where feasible, to correct Cyrun 35 Application Software problems by telecommunications. Customer shall also 36 install and maintain a secondaiy/backup computer with the necessary modem in 37 the event that the primary equipment is out of service. 38 b. Customer shall provide Cyrun with adequate personnel and work space, if 39 necessary, for performance of its maintenance services hereunder. 40 c. Customer shall provide Cyrun with sufficient support and test time on Customer's 41 computer system for Cyrun to perform its maintenance services hereunder. 42 d. At its expense, Customer shall furnish to Cyrun all necessary supplies, such as 43 paper and magnetic/optical media, reasonably necessary for Cyrun to perform its 44 maintenance services hereunder. 45 46 6. Remote and On-Site Maintenance. Where feasible, Cyrun shall endeavor to correct 47 Cynm Application Software problems by remote diagnostics via telecommunications and Page 6 of 13 Palm Springs PD So[tw a support and Maintenance Agreement 9/7/06 Cyrun Initials: Customer Initials: I VPN. In order for Cyrun to properly support the CUSTOMER, Symantec's 2 pcANXWIIERE© and GoToMyPC is required on any Alliance enabled 3 workstation/server, along with granting Cyrun's support staff Administrative rights to the 4 Domain, servers and workstations. VPN access must be provided by Customer to Cyrun 5 personnel_ If the problem cannot be corrected by such remote diagnostics, with 6 Customer's authorization, Cyrun will send one or more specialists to Customer's site to 7 correct the problem as outlined in this document- 8 9 7. Term. The first term of this Agreement shall commence on the expiration of the Thirty 10 (30) day warranty period under the Professional Services and Software License 11 Agreement, and shall continue for a period of five (5) years thereafter as described in the 12 Professional Services and Software License Agreement Software License Agreement. 13 This agreement shall automatically renew for additional one year increments after the 14 initial five(5) years contract unless either party shall notify the other party of the intent to 15 terminate this agreement at least thirty(30) day prior to the expiration of the then current 16 term. 17 18 8. Price and Payment. In consideration of Cyrun's maintenance services hereunder, and the 19 reduced cost of the Cyrun Application Software, the City of Palm Springs has agreed to a 20 binding five(5) year support contract payable annually. Customer shall pay to Cyrun the 21 fees for the Application Software Support and Maintenance Agreement at a rate defined 22 in Exhibit A, Pricing. The payment for the first term of this Support and Maintenance 23 Agreement shall be due upon the expiration of the software warranty as define by the 24 Warranty Period. In the event that the first term payment is not receive within 45 days of 25 the expiration of the software warranty, the City of Palm Springs has agreed to pay Cyrun 26 the remaining balance of the five(5) year support contract or the amount that Cyrun 27 discounted the Cyrun Application Software, which ever is less. Additional licenses will 28 add an additional support fee of 18% of the cost of said licenses to the base support fee. 29 Purchase of any Cyrun Application Software not part of the original Agreement shall 30 have a support fee based on the current rate. 31 32 9. Proprietary Rights. The original and any copies of the LICENSED SOFTWARE shall 33 remain the valuable properly of Cyrun. Customer shall take all reasonable and necessary 34 steps to insure that the Software License Provisions of the Software License Agreement 35 arc not violated by any person or entity in Customer's service or under Customer's 36 control, and Customer shall not, nor shall it cause or permit any such person or entity to 37 disassemble, reverse engineer or in any manner change, modify or tamper with the 38 LICENSED SOFTWARE. 39 40 10. Copyright and Reproduction. Customer may not copy or allow anyone else to copy, or 41 otherwise reproduce any part of the LICENSED SOFTWARE, except to make backup 42 copies which are necessary for Customer's internal data processing needs and in 43 conformance with the Software License Agreement. Customer may not remove or omit 44 any copyright, trademark or other proprietary notices frorm the LICENSED SOFTWARE 45 and Customer shall reproduce and include all copyright, trademark and other proprietary 46 notices on all such backup copies. The existence of any copyright notice on any item of Page 7 of 13 Palm Springs PD Sv c Support and Maintenance Agreement 9/7/06 (, mitt. — Customer Initials: I LICENSED SOFTWARE shall not be construed as an admission or presumption that 2 publication of such item of software has occurred. 3 4 IL Limited Warranty and Disclaimer. Cyrun warrants that it holds title and/or copyright to 5 all LICENSED SOFTWARE furnished pursuant to this Agreement as part of the 6 SYSTEM. THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU 7 OF, AND CYRUN SPECIFICALLY DISCLAIMS,ALL OTHER WARRANTIES, 8 EXPRESSED OR IMPLIED. 9 10 12. Limitation of Liability. 11 a. Cyrun's sole undertaking under this Agreement is limited to furnishing the 12 maintenance services provided herein, in accordance with the terns and 13 conditions of this Agreement. Operation and use of the SYSTEM are the sole 14 responsibility of Customer 15 b. The obligations of Cyrun under this Agreement shall not be interpreted, either 16 expressly or impliedly, as being for the benefit of or creating any obligation 17 toward any person or entity other than Customer, Cyrun's obligations under this 18 Agreement being extended solely to Customer and for its benefit. 19 c. FOR BREACH OF ANY WARRANTY OR OTHER OBLIGATION OF 20 CYRUN IN THIS AGREEMENT, CYRUN SHALL IN NO EVENT BE 21 LIABLE FOR ANY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL 22 DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST INCOME, 23 REVENUE OR PROFIT, INCREASED OPERATING EXPENSES, FAILURE 24 TO REDUCE OPERATING EXPENSES, OR LOST TIME OR 25 INFORMATION, WHETI-TER SUCH DAMAGES WERE FORESEEABLE OR 26 NOT AT THE TIME THIS AGREEMENT WAS ENTERED INTO. CYRUN'S 27 LIABILITY FOR ANY AND ALL SUCH BREACHES COMBINED SHALL 28 NOT EXCEED IT'S COMMERCIAL GENERAL LIABILITY INSURANCE. 29 30 13. Uncontrollable Conditions. Cyrun shall not be liable under this Agreement for any loss 31 or damage to Customer due to delay in delivery or other performance failures resulting 32 from any cause beyond Cynm's reasonable control. Such causes shall include, but are 33 not limited to, compliance with regulations that affect programming changes to the 34 System, communications links to external systems, civil or military authority, acts of 35 God, acts of the public enemy, acts or omissions of Customer, electrical power surges or 36 current fluctuations, lightning strikes, floods, strikes, lockouts, embargoes, wars,riots, 37 insurrections, fuel shortages, default or delay of suppliers, delays in transportation and 38 loss or damage of goods in transit. Notwithstanding the above, both parties shall use 39 their best efforts to minimize the adverse consequences of any such condition. 40 41 14. Confidential Information. 42 a. It is expressly understood between the parties that: (1) all Cyrun APPLICATION 43 SOFTWARE programs, Cyrun CUSTOM SOFTWARE code and/or programs 44 and related documentation, (2) all information, written or oral, resulting from 45 Cyrun's furnishing of the SYSTEM to Customer, including but not limited to any 46 and all test, studies, analyses, written materials or documentation, and (3) the 47 SYSTEM configuration and unit pricing and extensions thereto, constitute Page 8 of 13 Palm Springs PD and Maintenance AF ccmn 9/7/06 Cyrun Initials: N I Customer Initials: I proprietary information the nature of which is a trade secret of Cyrun 2 ("Confidential lnformatioif). Customer acknowledges that intentional and 3 unauthorized dissemination of any Confidential Information (including without 4 limitation, disassembly or reverse engineering of Cyrun APPLICATION 5 SOFTWARE, and/or Cyrun CUSTOM SOFTWARE code and/or programs) 6 could cause irreparable harm to Cyrun, and thus agrees not to disclose, transfer, 7 provide or otherwise make available, in any form, any Confidential Information to 8 any person or entity other than Customer's employees, agents or authorized 9 personnel without the prior written consent of Cyrun. 10 b. Customer shall be fully liable for loss or damage incurred by Cyrun as a result of I I the intentional release of Confidential Information by Customer or its agents. 12 Customer's obligations under this section shall survive the termination, 13 cancellation or rescission of this Agreement, and/or of the license hereunder of 14 the LICENSED SOFTWARE. CUSTOMER'S LIABILITY FOR ANY AND ALL 15 SUCH BREACHES SHALL NOT EXCEED TllE TOTAL PRICE TO BE PAID BY 16 CUSTOMER UNDER THIS AGREEMENT_ NOR SHALL CUSTOMER'S 17 GENERAL LIABILITY EXCEED ITS INSURED VALUE. 18 19 15. Taxes. The price for the maintenance services under this Agreement is exclusive of local, 20 state and federal sales, excise, personal property or other similar taxes or duties, and any 21 such taxes or duties are assumed and to be paid by Customer. 22 23 16. Patent and Copyright Indemnity. Cyrun agrees to defend, at its sole cost and expense 24 including attorney fees, any lawsuits against Customer that are based upon a claim that 25 any item of LICENSED SOFTWARE furnished under this Agreement directly infringes 26 a patent or copyright, and to pay costs and damages finally awarded in any such suit, 27 provided that Customer promptly notifies Cyrun in writing of any such claim., Cyrun is 28 given full control of the claim and any suit related thereto, and Customer cooperates with 29 Cyrun in rendering all requested reasonable assistance for defense of the suit. This 30 indemnity does not extend to any suit based upon any infringement or alleged 31 infringement of copyright or patent by the combination of any item of LICENSED 32 SOFTWARE furnished by Cyrun with other elements provided by Customer_ If Cyrun 33 looses such suit, and it is ordered that the LICENSED SOFTWARE be removed from the 34 Customer site, Cyrun shall refund to the Customer, the prorated cost under this 35 agreement. The foregoing states the entire liability of Cyrun for patent or copyright 36 infringement related to the LICENSED SOFTWARE, 37 38 17. Assn anent. Customer shall not assign, encumber w otherwise transfer any interest in 39 this Agreement, without the prior written consent of Cyrun. 40 41 18. L--egalitX. This Agreement and the parties' performance hereunder shall comply with all 42 applicable federal, state and local laws, rules, regulations, court orders, and governmental 43 agency orders. Without limiting the generality of the foregoing: 44 a. The parties shall adhere to all applicable health, safety and environmental laws, 45 rules, regulations, and orders, including those of the Occupational Safety and 46 Health Administration. Page 9 of 13 Palm Springs PD So Rw c5upport and Maintenance Agreement 9/7/06 Cyrun lllltials: / Customer Initials: I b. Unless exempt under the rules and regulations of the Secretary of Labor or other 2 proper authority, this Agreement is subject to all applicable execution, federal, 3 state and local laws, rules, regulations, court orders and governmental agency 4 orders relating to equal opportunity and nondiscrimination in employment. Cyrun 5 expressly agrees not to discriminate in its employment practices against any 6 person by reason of race, religion, color, age, sex or national origin and agrees to 7 comply with the applicable provisions of such laws, rules, etc., as well as all laws, 8 rules, etc. relating to the employment of the handicapped, the employment of 9 veterans, or the employment of women and minority business enterprises. 10 11 18. Choice of Law Venue and Jurisdiction_ hrterpretation and enforcement of this 12 Agreement shall be governed by the laws of the State of California. The venue for any 13 arbitration or court proceeding arising out of or in connection with this Agreement shall 14 be in Riverside County, California. Jurisdiction of any such court proceeding shall be in the 15 courts of the State of California. 16 17 20. Fyuitable Relief. Notwithstanding anything in this Agreement to the contrary, if the 18 resolution of any dispute which cannot be settled first by the negotiation of the Parties, 19 reasonably requires the imposition of injunctive or other equitable relief, the aggrieved 20 Party may commence a lawsuit to obtain such injunctive or other equitable relief 21 22 21. Validitv. The invalidity in whole or in part of any provision of this Agreement shall not 23 void or affect the invalidity of any of the other provisions of this Agreement. 24 25 22. Attorney s Fees_ In the event any legal proceeding is instituted to enforce any term or 26 provision of this Agreement, the substantially prevailing party in said legal proceeding 27 shall be entitled to recover attorney's fees and costs from the opposing party in an 28 amount determined by the Court to be reasonable. 29 30 23. Termination. In light of the reduced cost of the Cyrun Application Software, the City of 31 Palm Springs has agreed to a binding five (5) year support contract payable annually. If 32 the City of Palm Springs elects to cancel the five (5) year support contract through no 33 fault of Cyrun, the City of Palm Springs has agreed to pay Cyrun the remaining balance 34 of the five (5) year support contract or the amount that Cyrun discounted the Cyrun 35 Application Software, which ever is less. 36 37 24. Representatives and Notices. The Chief of Security or his designee shall be the 38 representative of Customer for purposes of this Agreement and may issue all consents, 39 approvals, directives and agreements on behalf of the Customer, called for by this 40 Agreement, except as otherwise expressly provided in this Agreement_ 41 42 All notices and written communications sent by one party to the other shall be personally 43 delivered or sent by registered or certified U.S. Mail, postage prepaid, return receipt 44 requested to the following addresses indicated below: 45 Cyrun Palm Springs Police Department Attn: Darrell Luera Attn: Capt.Ron Starrs 125 Water Street, Suite A2 PQ Box 1830 Page 10 of I Palm Springs PD Softwar uppon and Maintenance Agreement 9/7/06 Cyrun Initials: Customer Initials: Santa Cruz,CA 95060 Palm Springs,CA 92263 Phone: (831)458-0949 Phone: (760)323-8120 Fax: (831)459-9406 Fax: (760)778-8448 Email: ]Jarrell@Cynux.com Finail: Rori-Starrs@PaImSpriligs-CA.gov . 1 2 The effective date of any notice or written communication sent by one party to the other 3 shall be the date received or by personal service or 48 hours after deposit in the U.S. Mail 4 as reflected by the official U.S. postmark. 5 6 Either party may change its address by giving notice in writing to the other party. 7 8 25. Insurance. Cyrun shall obtain any kinds and amounts of insurance which, in its 9 own judgment, may be necessary for the property protection of any of its officers, 10 employees, agents or authorized subcontracts own actions during the performance of this 11 Agreement. 12 13 26. Independent Contractor. The parties hereto acknowledge and agree that the relationship 14 between Customer and Cyrun is one of principal and independent contractor and no 15 other. Nothing contained in this Agreement shall create or be construed as creating a 16 partnership,joint venture, employment relations, or any other relationship except as set 17 forth between parties. The parties specifically acknowledge and agree that Cyrun is not a 18 partner with Customer, whether general or limited, and no activities of Customer or 19 Cyrun or statements made by Customer or Cyrun shall be interpreted by any of the 20 parties hereto as establishing any type of business relationship other than an independent 21 contractor relationship. 22 23 27_ Waiver. No waiver or any provisions of this Agreement shall be effective unless in 24 writing and signed by a duly authorized representative of the party against whom 25 enforcement of a waiver is sought. The waiver of any right or remedy in respect to any 26 occurrence or event, shall not be deemed a waiver of any right or remedy iu respect to 27 any other occurrence or event, nor shall any waiver constitute a continuing waiver. 28 29 28_ Headings. Section and subsection headings are not to be considered part of this 30 Agreement, are included solely for convenience, and are not intended to modify or 31 explain or to be a full or accurate description of the content thereof. 32 33 29. Corporate Authority. The persons executing this Agreement on behalf of the Parties 34 warrant that they are duly authorized to execute this Agreement on behalf of said Parties 35 and that by doing so, the Parties hereto are formally bound to the provisions of this 36 agreement. 37 38 30. Additional Services. Cyrun shall not receive compensation for any services provided 39 outside the scope of this Agreement unless such additional services, are approved in 40 writing by Customer prior to Cyrun performing the additional services. It is specifically 41 understood that oral requests or approvals of such additional services, change orders or 42 additional compensation and any approvals 6rom the Customer shall be barred and are 43 unenforceable. Page 1 I of 13 Pahn Spruigs PD SoJft�w m Support and Maintenance Agreement W7106 Cyrun butials: / 1- Customer Initials: I IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by there 2 duly authorized officers as of the date set forth in the above preamble. 3 4 Cyr City of Palm Springs /1 B �—r '� By: y: Name'�D,42ZzLL r L�,�jZF� Name: Title: vF t✓L Llu ' Esc /4c f Title: Date: 7� Date: Attest: Name: Title: Date: Approved as to form: Approved as to content: 5 Page 12 of 13 Palm Springs PI)S are Support and Maintommce Agreement 9/7/06 Cyrun initials: Customer initials: I Professional Services : And Software License Agreement sr between Cyrun and The City of Palm Springs Doing Business As Palm Springs Police Department forthe Computer-Aided Dispatch and Records Management System C'yrun Initials: Cuslnmrr Initials: 516395.1 1.0 Definitions.............................. ............ 1 2.0 General Description uf Services---------------___......................................... ............................. 1 38 [jcenne..----.`............------^^^^^^^^^^^^^^^^^~~^^-----^^^~~�� 4.0 NutUseU.................... ........................................ .~^^^---~~~^~^~^~^^^~^~^~^^^^-`^�� 5.0 Compensation.............. ........................................................................... .................... .--1 6-0 Term ufAoneenoeDt................................................... .............................^ ------------ .......... � ' 7.0 PersonnaL......~.----...............------,..................--.�1 8.0 Site Security and Access...................................................... -----------------------................. ^1 QO Pre-existing Equipment and Facilities and Acquisition of Products.....................___.........� 10.0 Training and Training Materials......................................... ..................................................... � 11.0 Changes and Extra San/ices. ............... ................................ -------------------___... ................ 1 12.0 Completion Dates for Productive Use............................................................. ..................... � 13-0 Not Used............... ... ............................................ ...~~^^^^^^^^^~^~^~~~^~~^~-~^~^�� 14.0 WGrnandes....'--................----........................~..—`..�1 15.0 Not Used ......................................................................... —_'—..~................^1 16.0 Transfer mf Title and Risk of Loss... ------------ ....................................... ..^--~._—......� 17.0 Equitable Relief............................................................................... ......^'-------.....1 180 Termination nf Agreement.............................................. ...................................................1 19.0 [oVlfideMtia| Information ---......................... .'----~......~...............^_—.�� 20.0 Not Used..... ................... -------------.. ................................ ^^'_---................�1 21.0 Insurance.----- ~ ...... ...................................... .....................—'----......1 2ZO Patent and Copyright Indemnification-------------- ...........................................^—~---....�1 23.0 Limits onLiabi|Uv.~-----~ ..... ..... ........................ -------- .................................. —`�1 ' 24 Not Used............................................................................... .....................-_1 25.0 Compliance with Laws and Ordinances...................................... ------------ ...........................1 26.0 Covenant Against Contingent Fees------------- .....................................~ ----------------------- .........1 2TO Conflicts of Interest ........................................ ......... .......................................... 1 28.0 Not Used...... ----------- ....................................................................'-...1 29�0 Fair Employment Practices.... ............................................. .................................... ^'1 30.0 Notices.................................. ----------~ ................................. .^----.~............1 31.0 Misce|kanmoVs ................-----........................—^----....�1 Palm Springs PD Pmfessional Services and Softwam Licease Ag�emcnL *�7/06 `«,unw" w customer Initials: 2im^s/215005.1 \ 1 PROFESSIONAL SERVICES AND 2 SOFTWARE LICENSE AGREEMENT 3 4 INTRODUCTION 5 6 This Professional Services and Software License Agreement is made and entered into this 9th day 7 of October, 2006 ("Effective Date"), by and between the City of Palm Springs (herein called 8 "Customer"), doing business as the Palm Springs Police Department, with its principal place of 9 business at 200 South Civic Dr., Palm Springs, CA 92263 and Cyrun, a California corporation, with 10 its principal place of business at 125 Water St. Suite A2, Santa Cruz, California 95060 (herein called 11 "Cyrun"), 12 13 RECITALS 14 15 1.0 Palm Springs Police Department, a department of the Customer, desires to procure a 16 fully integrated Public Safety Information System, including the major subsystems of a Computer 17 Aided Dispatch System (CAD), a Records Management System (RMS), a Field Officer Reporting 18 (FOR), a Mobile Data System (MDS), a Data Radio infrastructure and the components and 19 interfaces for the selected subsystems defined in Exhibit A, Pricing; and 20 21 2.0 The parties now wish to enter into an Agreement pursuant to which Cyrun shall 22 provide the System and perform any ancillary professional services necessary to install and 23 implement the System; 24 25 NOW THEREFORE, in consideration of the mutual promises contained in this Agreement, 26 the parties agree as follows: 27 28 AGREEMENT 29 30 . 1.0 DEFINITIONS 31 32 The following definitions apply to the terms used within this Agreement: 33 34 1.1 Calendar Days. Unless specifically stated otherwise, all references to days in this 35 Agreement refer to calendar days_ 36 37 1.2 Change Order. A written order executed by both parties amending the Professional 38 Services and Software License Agreement Documents. 39 40 1.3 Agreement. The term "Agreement" refers to this Professional Services and Software 41 License Agreement and its Exhibits. 42 43 1.4 Agreement Documents. The term "Agreement Documents" collectively refers to this 44 Agreement and all attached exhibits. 45 Page 1 of 18 Palm Springy PU PtafessionalSmices and Software License Agreement 9/7/06 Cyrun Initials: Customer Initials: M005.1215005.1 S1G395.1 1 1.4.5 Confidential Information. The term "Confidential Information" means all business 2 information disclosed by one party to the other in connection with this Agreement unless it is or later 3 becomes publicly available through no fault of the other party or it was or later is rightfully developed 4 or obtained by the other party from independent sources free from any duty of confidentiality. 5 Without limiting the generality of the foregoing, Confidential Information shall include Customer's 6 data and the details of Customer's computer operations. 7 8 1.5 Customization Modification. The term "Customization Modification" refers to a 9 modification to the System's Source Code, which provides new or improved functions or features to 10 address specific Customer requirements that have been requested by Customer in writing. 11 12 1.6 Cyrun Application Software. The term "Cyrun Application Software" means any 13 software owned and licensed by Cyrun and installed as a part of the System, whether in machine 14 readable or printed form, including any Customization Modifications, or Updates, and all related 15 Documentation. The term may be used as representative of all Cyrun Application Software and 16 modules or subcomponents thereof(i.e., modules, interfaces). 17 18 1.7 Defect. With respect to the System, the term "Defect" means any reproducible; error, 19 failure, deficiency, or any other unacceptable variance of the Cyrun Application Software to fully 20 conform to the terms of this Agreement and the warranties described herein_ 21 22 1.8 Derivative Works. The term "Derivative Works" means, with respect to any Cyrun 23 Application Software, any translation, abridgement, revision, modification, recasting, transformation, 24 or adaptation of the Source Code of such Cyrun Application Software. 25 26 1.9 Documentation. The term "Documentation" means all written, electronic, or recorded 27 works that describe the use, features, functional capabilities of the Cyrun Application Software, 28 including, without limitation, all end user manuals, training manuals, guides, program listings, data 29 models, flow charts, logic diagrams, and other materials related to or for use with the Cyrun 30 Application Software. 31 32 1.10 Final System Completion. The term "Final System Completion" means the date on 33 which Cyrun has issued a written Notice of Completion to Customer indicating all terms and 34 conditions of this Agreement have been successfully completed by Cyrun. 35 36 1.11 Hardware. The term "Hardware" means all hardware, equipment and other tangible 37 non-Software items supplied to Customer by Cyrun under this Agreement. 38 39 1.12 Productive Use. The term "Productive Use" means the ability to use a majority of the 40 major subsystems in a live environment. 41 42 1.13 Products. The term "Products" means the selected Software and all Hardware 43 options defined in Exhibit A, Pricing_ 44 45 1.14 Project. The term "Project" refers to Cyrun's obligation under this Agreement to 46 develop, supply, install, configure, test and implement the System. Page 2 of 18 Palm Springs PO Professional Se icu and Software License Agreement 9/7/06 Cyrun Initials: Customer Initials: 516395.1 1 2 1.15 Prolect Schedule. The term "Project Schedule" means the Project Schedule 3 contained in Exhibit B, Project Schedule, for the implementation of the System. 4 5 1.16 Services. The term "Services" means the selected service options defined in 6 Exhibit A, Pricing- 7 8 1.16 Software. The term "Software" means_ (a) all Cyrun Application Software; (b) all 9 Third-Party Software to be supplied by Cyrun under this Agreement; and (c) all Customization 10 Modifications and Updates to any Cyrun Application Software as may be approved by Customer. 11 12 1,17 Source Code. The term 'Cyrun Application Source Code" means the human 13 readable form of the Cyrun Application Software and all algorithms, flow charts, logic diagrams, 14 structure descriptions or diagrams, data format or layout descriptions, pseudo-code, code listings 15 (including comments). 16 17 1.18 System. The term "System" means the fully integrated Public Safety Information 18 System, including the following subsystems: a Computer Aided Dispatch System (CAD) including its 19 related components and interfaces, a Records Management System (RMS) including its related 20 components and interfaces, and a Field Officer Reporting (FOR) including its related components 21 and interfaces procured by Customer pursuant to the Software License Agreement. 22 23 1.19 System Administrator Documentation. System Administrator Documentation refers to 24 that portion of the Documentation addressing the operation and maintenance functions of the 25 installed Cyrun Application Software. 26 27 1.20 Third-Party Software. The term "Third-Party Software" means the software to be 28 supplied under this Agreement that is purchased or licensed by Cyrun directly from any source 29 external to Cyrun for use with or that is integrated into the System. 30 31 1.21 Updates. The term "Updates" means maintenance modifications, improvements, 32 additions, and corrections to the Products and/or related Documentation, including fixes, patches, 33 new releases and new versions that Cyrun makes generally available to its customers with or 34 without an additional fee. 35 36 1.22 Warranty Period. The term "Warranty Period" means (a) with respect to Cyrun 37 Application Software the thirty (30) day period following the date of Final System Completion and 38 Acceptance by Customer, and (b) with respect to Third-Party Software and Hardware, the applicable 39 warranty period provided by the respective manufacturer upon installation. 40 41 2.0 GENERAL. DESCRIPTION OF SERVICES 42 43 2.1 Supply. Installation. and Implementation. Cyrun shall act as the prime contractor for 44 this Agreement and as such shall be solely responsible for the delivery and installation of the System 45 as described in Exhibit C, Statement of Work. Cyrun shall perform all of the work and install the 46 System as described in Exhibit C, Statement of Work, and within the time frame specified in Exhibit B. Page 3 of IS Patin Springs PD Professional Sucvicm and Software License Agreement 9/7/06 Cyrun initials: Customer Initials: 516395.1 1 No changes in the agreements and/or sub-agreements will be allowed except pursuant to Section 2 11.0, Changes and Extra Services. 3 4 22 Transition. Cyrun will work with Customer to ensure a smooth and efficient transition 5 from Customer's current systems to the System and to minimize disruption to current operations. 6 7 3.0 LICENSE 8 9 3.1 Grant of License. Subject to Section 3.3 and Final System Completion, Cyrun grants 10 to Customer a nonexclusive, nontransferable license to use all Cyrun Application Software provided 11 under this Agreement per the user licensing allocation as identified in the attached Exhibit A Pricing. 12 This license shall be to: (a) operate the System (excluding Third-Party Software the licenses which 13 are discussed below); (b) conduct internal training and testing, and (c) perform disaster recovery, 14 backup, archive, restoration, testing, and implementation. 15 16 The license for each Cyrun Application Software product or module will become effective on 17 the date the product or module is first installed at the Police Department's facilities and Customer 18 may use Cyrun Application Software on any Cyrun approved equipment at any Customer facility and 19 may make as many copies of the Software as it deems reasonably necessary to support its 20 authorized use of the Software, provided the copies include Cyrun's or the third-party owner's 21 copyright or other proprietary notices. Customer may not sell, assign, or otherwise transfer any such 22 copies without Cyrun's prior written consent. 23 24 Third-Party Software provided under this Agreement shall be licensed by the manufacturer of 25 that Software. All Third-Party Software licenses shall be provided to Customer and become 26 effective at the time of installation. Cyrun shall cause all manufacturers' warranties and guarantees 27 provided with any such Software to be given directly in favor of Customer. 28 29 3.2. Not Used. 30 31 13 Limitations on License. The System is furnished to Customer solely for use by the 32 personnel of the Palm Springs Police Department in performance of their responsibilities and duties 33 as police officers and employees of Customer and such other operational or information services 34 personnel as the Customer may designate to assist in the maintenance of the System. Customer 35 shall not use all or any portion of the System for any other purpose. By way of example, and not in 36 limitation of the foregoing, Customer may not use the System for the purpose of providing dispatch 37 services for any department or agency of the Customer other than dispatch services for the Palm 38 Springs Police Department without purchasing additional software licenses. 39 40 3.4 Derivative Works. Except as licensed to Customer, the software manufacturer retains 41 all of its rights, title, and interest in the Software, including Derivative Works, Customization 42 Modifications, Documentation, Source Code, and Updates. Unless authorized by Cyrun or required 43 by law, Customer will not: (1) make available or distribute all or part of the Software to any third 44 party by assignment, sublicense, or any other means; or(2) disassemble, decompile, or reverse 45 engineer the Software. 46 Paps 4 of IS Palm Springs PD Pfores;ional Scrvi=yid Software License Agreement 9/7/06 �J Cyrun initials: Customer Initials: 516195,1 1 3.5 Proprietary Rights. The original and any copies of Cyrun Application Software shall 2 remain the valuable property of Cyrun. Customer shall take all reasonable and necessary steps to 3 ensure that the software license provisions are not violated by any person or entity in the Customer's 4 service or control and Customer shall not, nor shall it cause or permit any such person or entity to 5 disassemble, reverse engineer, or in any manner change, modify or tamper with the Software. 6 7 3.6 Copyright and Reproduction. Customer may not copy or allow anyone else to copy, or 8 otherwise reproduce any part of the Software, except to make backup copies necessary for 9 Customer's internal data processing or information services needs. Customer may not remove or omit 10 any copyright, trademark, or other proprietary notices from the Software; and Customer shall 11 reproduce and include all copyright, trademark and other proprietary notices on all such backup 12 copies. The existence of any copyright notice on any item of the Software shall not be construed as an 13 admission or presumption that publication of such item of Software has occurred. 14 15 3.7 Exportation. Software and documentation associated therewith may not be exported or 16 re-exported without the appropriate United States or foreign government approvals and licenses and 17 Cyrun's prior written consent. 18 19 4.0 NOT USED 20 21 5.0 COMPENSATION 22 23 5.1 Taxes. The price for the System under this Agreement is exclusive of local, state, 24 and federal sales, excise, personal property or other similar taxes or duties, and any such taxes or 25 duties, if any, will be paid by Customer. 26 27 5.2 Compensation. Subject only to duly executed Change Orders, it is expressly 28 understood and agreed that in no event will the total compensation to be paid Cyrun under this 29 Agreement exceed the sum of$181,064.13. for software, hardware, and installation services, 30 including, but not limited to Cyrun and all of Cyrun's sub-vendors, as outlined in Exhibit A and any 31 mutually agreed to Change Order, or exceed the sum of$60,290 for each year of the agreed to five 32 (5) year Application Software Support and Maintenance Agreement for a total agreement price of 33 $301,450. 34 35 5.3 Method of Payment. Customer shall make periodic payments according the payment 36 schedule provided in Exhibit D, Project Milestone and Payment Schedule. Customer will pay all 37 invoices within thirty(30)days of receipt and upon approval of the work relating to the invoice. All 38 invoices shall be made in writing and delivered, via FAX, e-mail, mailed to Customer as follows: 39 40 City of Palm Springs 41 Palm Springs Police Department 42 200 South Civic 43 Palm Springs, CA 92262 44 (760) 323-8120 45 (760) 778-8448 (Fax) 46 Att-. Capt. Ron Starrs Paec 5 of 18 Palm Springs PD Prof'mionl Services and Software Uocnsc Agreement W7106 ti Cyenn Initials: Customer initials: 516395.1 1 Ron.starrs@palmsprings-ca.gov 2 3 Services for Cyrun and its Sub-vendors along with any Cyrun supplied hardware shall be due when 4 completed. All amounts past due on undisputed invoices from Customer to Cyrun under this 5 Agreement shall bear interest at the rate of one and one-half percent(1'/a %) per month (or the 6 maximum rate allowed under applicable law, whichever is less). Interest shall accrue and relate 7 back to the date each progress payment became due or the date of receipt of any invoice, 8 whichever date is later, if any outstanding balance of such payment is forty-five (45) days past due. 9 10 11 6.0 TERM OF AGREEMENT 12 13 The term of this Agreement shall be from the Effective Date of this Agreement through the 14 end of the thirty(30) day Warranty Period following Final System Completion and productive use. 15 Application Software Support and Maintenance Agreement shall be effective immediately after the 16 thirty(30) day Warranty Period provided that Customer has executed the Application Software 17 Support And Maintenance Agreement prior to the expiration of the Warranty Period. 18 19 7.0 PERSONNEL 20 21 7A Cyrun's Proiect Manaaer. Duties are outlined in Exhibit C, Statement of Work. 22 23 7.2 Customer's Project Manager. Duties are outlined in Exhibit C, Statement of Work. 24 25 7.4 Subcontracting. In the event that Cyrun enters into one or more subcontracts 26 pursuant to this Section, it is understood and agreed that the participating subcontracts shall be 27 solely and directly responsible to Cyrun, and Customer shall have no obligation to them. 28 29 7.5 Independent Contractor Status_ Cyrun is an independent contractor and not an 30 employee or agent of Customer and has no authority to agreement or enter into any Agreement in 31 the name of Customer. Cyrun has, and hereby retains, full control over the employment, direction, 32 compensation and discharge of all persons employed by Cyrun who are assisting in the 33 performance of services under this Agreement. Cyrun shall be fully responsible for all matters 34 relating to the payment of its employees, including compliance with social security, withholding tax 35 and all other laws and regulations governing such matters. Cyrun shall be responsible for its own 36 acts and those of its agents and employees during the term of this Agreement. 37 38 Nothing herein shall be construed so as to make the parties hereto partners or joint ventures. 39 40 8.0 SITE SECURITY AND ACCESS 41 42 8.1 Access to Premises. Customer will provide Cyrun with reasonable and timely access 43 to the sites and personnel necessary for Cyrun to perform its obligations under this Agreement_ The 44 assistance or presence of Customer's personnel will not relieve Cyrun of its responsibilities under 45 this Agreement, including the responsibility to commit sufficient Cyrun personnel to successfully 46 perform its tasks under this Agreement. Page 6 of 18 Palm Springs PD Prufe!s l Services and Software License Agreement 9/7/06 Cyrun Initials; Customer Initials: 5163951 1 2 8.2 Site SecuritV and Access. Cyrun shall comply with Customer's site security 3 requirements which include, but are not limited to, requiring photographic identification badges and 4 submitting names and dates of birth of all personnel, including subcontractors of any tier, working on 5 Customer property or facilities. All badges shall be returned to Customer at the completion of Work 6 hereunder_ In the event Cyrun fails to comply with Customer's site security requirements, Cyrun's 7 personnel, including subcontractors, may not be allowed on Customer property or facilities- 8 9 9.0 PRE-EXISTING EQUIPMENT AND FACILITIES AND ACQUISITION OF PRODUCTS 10 11 9.1 Modifications to Pre-existing Equipment and Facilities. Cyrun will in no event or 12 manner be responsible for any of Customer's pre-existing, pre-owned, or pre-leased equipment 13 including without limitation all pre-existing physical and logical network connections. 14 15 9.2 Equipment Compatibility. Cyrun will provide a list of third party hardware to act as a 16 minimum specification for the software to be provided. Palm Springs Police Department shall be 17 responsible for installation of hardware and associated software not specifically licensed or resold to 18 Customer as part of the System, as well as integration into any applicable local or wide area 19 network(s). Cyrun shall not be responsible for any incompatibility with the System, performance, and 20 data capacities, and any other impact on the overall System operation or performance for any 21 equipment that does not meet the minimum hardware specifications as provided by Cyrun. 22 23 24 10.0 TRAINING AND TRAINING MATERIALS 25 26 10.1 Training. RMS/FOR and MDC training to be provided under this Agreement shall be 27 provided by Cyrun employees or by it's subcontractors. (Training for CAD will be provided via 28 separate agreement with Cathedral City Police Department.) 29 30 10.2 Training Materials, Cyrun will provide one (1) complete set of training materials in 31 electronic format using Microsoft Word 2000, Adobe Acrobat or a higher version of the same for the 32 user and administrator training. Palm Springs Police Department will have the right to duplicate the 33 training materials for the sole and exclusive use of the Palm Springs Police Department. 34 35 11.0 CHANGES AND EXTRA SERVICES 36 37 11.1 Cyrun and Customer may mutually agree to make alterations to, deviations from, 38 additions to, or deletions from the Agreement and to require such changes in the extent or manner 39 of performance of the Services as are determined to be reasonably necessary, provided the 40 appropriate and necessary changes, if any, to the Exhibit B, Project Schedule and all other terms 41 and conditions in the Agreement concerning the timing of deliveries under and completion of the 42 Agreement will be made. 43 44 11.2 Change Order. Each proposed change to the Agreement will be described in a 45 Change Order issued by Customer or Cyrun which will indicate either: 46 Page 7 of 18 Palm SPrings PD,PProf>cssiiopal Services and Software License Agieemenl 9/7/06 Cyrun initials: Customer initials: 6163951 1 11.2.1 The change involves no change in Agreement time of performance and no 2 change in the amount of the Agreement, or 3 4 11.2.2 The change will require a modification in the Agreement time of performance 5 or the amount of the agreement. 6 7 11.3 Change Orders. Change Orders shall implement any change to Agreement 8 Documents first, including any modifications thereto agreed upon by Customer and Cyrun. If the 9 non-submitting party agrees with the terms and conditions of a Change Order, the non-submitting 10 party shall sign the Change Order and return it to the other party's Project Manager_ 11 12 11.4 Schedule Extensions. If Cyrun or Customer, as applicable, is delayed in completion 13 of the work by reason of changes made under this Section, a Change Order will be furnished to 14 Cyrun or Customer, as applicable, within a reasonable period of time specifying the number of 15 additional days to complete the project. 16 17 12.0 COMPLETION DATES FOR PRODUCTIVE USE 18 19 12.1 Time is of the Essence. The parties acknowledge and agree that time is of the 20 essence in completing the Project. The completion dates established to bring the System into 21 Productive Use may be extended as provided in Section 11, "Changes and Extra Services," above. 22 23 13.0 NOT USED 24 25 14.0 WARRANTIES 26 27 14.1 Authority to Enter Agreement. Cyrun warrants that: (a) it is a corporation duly 28 incorporated, validly existing, and in good standing under the laws of the state of California and is 29 qualified to do business in the state of California; (b) it has the requisite corporate power and 30 authority to execute, deliver and perform its obligations under this Agreement; and (c) the execution, 31 delivery, and performance of this Agreement have been duly authorized by Cyrun. 32 33 14.2 Not Used 34 35 14.3 Hardware Warranties. Cyrun warrants that, at the time of delivery, the Hardware 36 provided in Exhibit A, Pricing will be new and under the manufacturer's warranty_ In addition, Cyrun 37 warrants that Palm Springs Police Department will acquire good and clear title to all Hardware 38 purchased under this agreement at the time of payment for the Hardware, free and clear of all liens 39 and encumbrances. All other Hardware warranties will be provided by the hardware manufacturer(s) 40 and will be effective upon the date of hardware installation. 41 42 14.4 Cyrun Application Software Warranties. Cyrun warrants that it owns or otherwise has 43 the right to license the Cyrun Application Software to Customer and that it possesses all rights and 44 interests in the Cyrun Application Software necessary to enter into this Agreement. In addition, 45 Cyrun warrants that: 46 Page 8 of 18 Palm Springs PO P!! ' nal Setvices and Software License Agreement 9/7/06 Cyrun Initials: Customer Initials: 5163951 I (a) The Cyrun Application Software is free of known viruses; 2 3 (b) During the Warranty Period the Cyrun Application Software will be 4 substantially free of Defects and will perform in conformity with all requirements of this Agreement; 5 6 (c) The Cyrun Application Software is and will be general release versions that 7 have been fully tested in accordance with best industry practices, and are not beta or pre-release 8 versions; and 9 10 (d) The Customization Modifications, if any, have been fully tested in accordance 11 with best industry practices. 12 13 Cyrun warrants that work and services performed under this Agreement conforms to the 14 requirements of the Scope of Work and is free of any defect of equipment, material, or design 15 furnished, or workmanship performed by Cyrun for the period of the Application Software Support 16 and Maintenance agreement between the Parties. Cyrun shall remedy at its own expense any such 17 failure which is deemed to be caused solely by Cyrun's products or personnel. 18 19 Cyrun further agrees that during the Warranty Period and as long as there is a Application 20 Software Support and Maintenance Agreement between the parties, Cyrun will provide Palm 21 Springs Police Department with any Updates to the Software (as described in the Application 22 Software Support and Maintenance Agreement) pursuant to the terms and conditions set forth in 23 Exhibit E, Application Software Support and Maintenance Agreement. 24 25 14.5 Work Quality Warranty. Cyrun warrants that all work performed by Cyrun and/or its 26 subcontractors under this Agreement will conform to best industry practices and will be performed in 27 a professional and workmanlike manner by staff with the necessary skills, experience, and 28 knowledge to do so. 29 30 14.6 Third-PartV Software Warranty- The warranty for Third-Party Software warranty will 31 be provided by the Third Party Software manufacturer and will be effective upon the date of 32 installation. 33 34 14.7 Service Warranty. The Service Warranty is as set forth in Exhibit E, Application 35 Software Support and Maintenance Agreement between the parties which have agreed to a 36 minimum five (5) year support contract. 37 38 14.8 Limited Warranty, THE WARRANTIES IN THIS AGREEMENT ARE GIVEN IN LIEU 39 OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION 40 ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR 41 PURPOSE, EXCEPT AS OTHERWISE PROVIDED IN 14.0 ABOVE. 42 43 44 15.0 NOT USED 45 Page 9 or IS Palm Springy PO Profcssi nil Services and Soflwate Lim a Agmemeur WV06 Cyrm,Lkifials: Customer Initials: 516395.1 1 16.0 TRANSFER OF TITLE AND RISK OF LOSS 2 3 Title and ownership of the Hardware will remain vested in Cyrun and Cyrun will bear any risk 4 of loss to the Hardware until the Hardware is installed at Customer facilities- 5 6 17.0 EQUITABLE RELIEF 7 8 17.1 Notwithstanding anything in this Agreement to the contrary, if the resolution of any 9 dispute which cannot be settled first by the negotiation of the Parties, reasonably requires the 10 imposition of injunctive or other equitable relief, the aggrieved Party may commence a lawsuit to 11 obtain such injunctive or other equitable relief. 12 13 18.0 TERMINATION OF AGREEMENT 14 15 18.1 Five 5 year Application Software Support and Maintenance Agreement In light of the 16 reduced cost of the Cyrun Application Software, the Customer has agreed to a binding five (5) year 17 support contract payable annually_ If the Customer elects to cancel the five (5) year support contract 18 through no fault of Cyrun, the Customer has agreed to pay Cyrun the remaining balance of the five 19 (5) year support contract or the amount that Cyrun has discounted the Cyrun Application Software, 20 which ever is less. 21 22 18.2 Termination for Default. Customer may terminate this Agreement by giving written 23 notice to Cyrun upon the occurrence of one or more of the following events, each of which is an 24 Event of Default: 25 26 18.2.1 Cyrun violates or fails to perform any covenant, provision, obligation, term or 27 condition contained in this Agreement. However, unless otherwise provided in this Agreement, the 28 default will not be cause for termination unless both of the following are satisfied: (1)the default is 29 reasonably susceptible to cure; and (2) Cyrun does not cure the default within thirty(30) days of 30 receipt of written notice of default or Cyrun does not present a plan to cure that is acceptable to 31 Customer within fifteen (15) days; or 32 33 18.2.2 Cyrun attempts to assign, terminate, or cancel this Agreement contrary to 34 the terms of this Agreement; or 35 36 18.2.3 Cyrun takes or fails to take any action which constitutes grounds for 37 termination under the terms of this Agreement, including but not limited to failure to comply with the 38 insurance requirements contained in Section 21.0; or 39 40 18.2.4 Cyrun ceases to do business as a going concern, makes an assignment for 41 the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition 42 in bankruptcy, or has an involuntary bankruptcy petition filed against it (except in connection with a 43 reorganization under which the business of She party is continued and performance of all of its 44 obligations under this Agreement will continue) which is not dismissed within ninety (90) days, or if a 45 receiver, trustee, or liquidator is appointed for it or any substantial part of its assets or properties. 46 Page 10 Of 18 Palm Springs Po Pmfessi l Setvieca and Software License Agreement 9/7/06 Cyrmt Gtitialc.� � Customer Initials: 516395.1 1 18.3 Suspension of Services. In the event that Customer disputes an allegation of default 2 by Cyrun, notwithstanding anything to the contrary in this Agreement, Cyrun agrees that it will not 3 terminate this Agreement or suspend or limit the Services or any warranties or repossess, disable or 4 render unusable any Software supplied by Cyrun, unless: (a) the parties agree in writing; (b) an 5 order of a Court of competent jurisdiction determines otherwise; (c) the default is not reasonably 6 susceptible to cure; or (d) Customer has not cured or answered such allegations of default within 7 thirty (30) days. 8 9 18.4 Termination for Force Majeure. Neither party will be liable for any failure or delay in 10 the performance of its obligations under this Agreement (and the failure or delay will not be deemed 11 a default of this Agreement or grounds for termination) if both of the following conditions are 12 satisfied: the failure or delay is caused, directly or indirectly, by fire, flood, earthquake, hurricane, 13 elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or 14 revolutions, court order, labor shortages, strikes, slow-downs, walkouts, lockouts, industrial 15 disturbances, other labor disputes or other circumstances beyond the non-performing party's control. 16 17 Upon the occurrence of an event which satisfies both of the above conditions (a "Force 18 Majeure Event"), the non-performing party will be excused from any further performance of those 19 obligations under this Agreement affected by the Force Majeure Event for as long as (a) the Force 20 Majeure Event continues; and (b) the non-performing party continues to use commercially 21 reasonable efforts to recommence performance whenever and to whatever extent possible without 22 delay. 23 24 Upon the occurrence of a Force Majeure Event, the non-performing party will immediately 25 notify the other party by telephone (to be confirmed by written notice within five (5) days of the failure 26 or delay) of the occurrence of a Force Majeure Event and will describe in reasonable detail the 27 nature of the Force Majeure Event. If any Force Majeure Event prevents Cyrun from performing its 28 obligations for more than thirty (30) days, Customer or Cyrun may terminate this Agreement without 29 further obligation on the part of either party, other than to pay any amounts due. 30 31 18.5 Obligations Upon Expiration or Termination. Upon expiration or termination of this 32 Agreement, the parties will promptly return to the other all computer programs, files, documentation, 33 data, media, related material and any other material or equipment that is owned by the other. 34 35 18.6 Transition of Services. Upon termination or expiration of this Agreement, Cyrun will 36 cooperate with Customer to assist with the orderly transfer of services, functions, and operations 37 provided by Cyrun under this Agreement to another provider or to Customer as determined by 38 Customer in its sole discretion. Prior to the termination or expiration of this Agreement, Customer 39 may require Cyrun to perform those transition services described below that Customer deems 40 reasonably necessary to migrate Cyrun's work to another provider or to Customer. Transition 41 services may include, but are not limited to the following: 42 43 18.6.1 Pre-Migration Services. 44 45 (a) Working with Customer to jointly develop a mutually agreed upon plan 46 for the transition services (the "Transition Services Plan") to facilitate the termination of the Services; Page 11 of IS Patin Springs PO Professional SeNlces and Software License Agreement 9/7/06 Cyrun Initials:. Customer Initials: 516395 I 1 2 (b) Notifying all affected vendors and subcontractors of Cyrun; and 3 4 (c) Freezing all non-critical changes to the System. 5 6 18.6.2 Migration and Post-Migration. 7 $ (a) Performing the Transition Services Plan activities. 9 10 (b) Answering questions regarding the services performed by Cyrun or the 11 System on an as-needed basis; and 12 13 (c) Providing such other reasonable services needed to effectuate an 14 orderly transition to a new System. 15 16 Customer agrees to pay Cyrun for transition services at Cyrun's then published hourly rate 17 for such services, plus reasonable out-of-pocket expenses not to exceed ten percent (10%) of the 18 cost of the transition services. 19 20 18.7 Other Remedies. Upon termination of this Agreement, each party may seek all legal 21 and equitable remedies to which it is entitled. The remedies contained in this Agreement are 22 cumulative to any other available remedies. 23 24 19.0 CONFIDENTIAL INFORMATION 25 26 19.1 Customer Confidential Information. Cyrun will regard all Palm Springs Police 27 Department files and data as Palm Springs Police Department's confidential information. Cyrun will 28 not disclose Palm Springs Police Department's confidential information to any third parties without 29 the written consent of Palm Springs Police Department. All data, reports, surveys, studies, 30 drawings, and any other documents and materials made available to Cyrun by Palm Springs Police 31 Department for use by Cyrun in the performance of its services under this Agreement shall be made 32 available for information only and shall be returned to Palm Springs Police Department at the 33 completion or termination of this Agreement. Cyrun may keep one copy of all such materials for 34 reference purposes only in connection with matters relating to this Agreement and the Project. 35 36 19.2 Cyrun Confidential Information. All patents, inventions (whether or not patentable), 37 copyrights, trade secrets, trademarks and other intellectual property rights worldwide ("Intellectual 38 Property Rights") in Cyrun's Application Software are and shall remain the property of manufacturer. 39 Manufacturer shall retain all right, title and interest to the intellectual property rights in the Cyrun 40 Application Software, now existing or hereafter acquired. 41 42 Customer will regard Cyrun's files and data, Cyrun's Software and Documentation, and any 43 other information or data provided by Cyrun that is labeled "confidential" or"proprietary" as Cyrun's 44 confidential information. With the exception of sub-sections (a)through (e) below, and Section 19.3, 45 Public Records Act Requests, Customer will not release Cyrun's confidential information or provide Page 12 of 18 Palm Springs PD Profes nal Services and Software Ucense Agreemmt 9/7/06 Cyrun Initials: � i Customer Initials: i 516395.1 I access to third parties, except Customer's consultants and contractors working on or with the 2 System who agree to abide by the terms of this provision, without the prior written consent of Cyrun. 3 4 The obligations set forth above in Section 19.1 and this Section 19.2 do not apply to any 5 information which: 6 7 (a) Is already in the public domain at the time of disclosure or later becomes 8 available to the public without a breach of this Agreement; 9 10 (b) Was, as between Customer and Cyrun, lawfully in the possession of the 11 recipient without obligation of confidentiality, prior to receipt under this Agreement; 12 13 (c) Is received independently from a third party free to lawfully disclose the 14 information; 15 16 (d) Is the subject of a judicial subpoena or similar process for disclosure in 17 connection with any action or proceeding, provided that notice of the demand is provided to allow an 18 opportunity to seek a protective order or other appropriate remedy prior to disclosure; or 19 20 (e) Such party can document as being independently developed. 21 22 19.3 Public Records Act Requests. In the event Customer receives a request 23 under the any Public Records Act for Cyrun's Confidential Information, Customer will promptly notify 24 Cyrun. 25 26 19.4 Findings Confidential. All of the drawings, designs, specifications, reports, studies 27 and surveys as such relate to Customer, made available to Cyrun by Customer in connection with 28 the Services under this Agreement shall be treated as confidential by Cyrun, and Cyrun agrees that 29 they shall not be made available to any individual or organization without prior written approval by 30 Customer. 31 32 20.0 NOT USED 33 34 21.0 INSURANCE 35 Cyrun shall procure and maintain in effect during the term of this Agreement the following 36 insurance coverage's with an insurance company or companies authorized to do business in the State 37 of California and approved by Customer with an A.M. Best's rating of no less than A:VI: 38 (1) Workers' Compensation and Employers Liability insurance in accordance with the laws 39 of the State of California with liability limits of One Million Dollars ($1,000,000 per 40 accident). The insurer will agree to waive all rights of sub rogation against Customer, 41 its officials, employees, and volunteers for losses arising from work performed by the 42 Cyrun for Customer with respect to Worker's Compensation claims against Cyrun. 43 (2) Comprehensive General Liability and Broad Form Comprehensive General Liability or 44 Commercial General Liability including bodily injury, personal injury, and property 45 damage in the amount of a combined single limit of One Million Dollars ($1,000,000), 46 each occurrence, and One Million Dollars ($1,000,000) in aggregate limit. Page 13 or 18 Palm Springs PD Pmressi u1 Services and Software License Agreement 9n106 Cyrun Initiate: U Customer iniliah; 516395.1 1 (3) Comprehensive Auto Liability including bodily injury, personal injury and property 2 damage in the amount of a combined single limit of One Million Dollars ($1,000,000) 3 each occurrence and One Million Dollars ($1,000,000) in aggregate. Coverage must 4 include all automobiles utilized by Cyrun in performing work in association with this 5 Agreement- 6 b. The following statement shall appear in each certificate of insurance provided to Customer by 7 Cyrun hereunder: "It is agreed that in the event of any material change in or cancellation of this 8 policy, thirty(30) calendar days prior written notice will be given to City of Palm Springs." 9 c. Cyrun shall give prompt written notice to Customer of all known losses, damages, or injuries to 10 any person or to property of Customer or third persons which may be in any way related to the 11 SYSTEM or for which a claim might be made against Customer. Cyrun shall promptly report to 12 Customer all such claims which Cyrun has noticed, whether related to matters insured or 13 uninsured. No settlement or payment for any claim for loss, injury or damage or other matter 14 as to which Customer may be charged with an obligation to make any payment or 15 reimbursement shall be made by Cyrun without the prior written approval of Customer, 16 d. Cyrun shall defend, indemnify and hold the Customer harmless from any and all claims and 17 liabilities related to or as a result of Cyrun's performance of the Agreement. Cyrun shall 18 assume the defense and indemnify and save harmless Customer and its members, officers, 19 agents, employees and volunteers from all claims, loss, damage, injury, proceedings and 20 liability of every kind, nature and description, directly or indirectly, whether actual, alleged or 21 threatened, arising from the performance of this Agreement by Cyrun's employees, agents or 22 subcontractors traveling to or from or at Customer's facilities, save and except the sole active 23 negligence or willful misconduct of Customer. This obligation to indemnify and defend 24 Customer, its members, officers, agents, employees and volunteers shall survive termination 25 of this Agreement. 26 e. Further, Cyrun shall obtain any additional kinds and amount of insurance which, in its own 27 judgment, may be necessary for the proper protection of any of its officers', employees', 28 agents, or authorized subcontractors' own actions during the performance of this Agreement. 29 Insurance shall include Errors and Omission policy. 30 31 22.0 PATENT AND COPYRIGHT INDEMNIFICATION 32 Cyrun agrees to defend, at its sole cost and expense including attorney fees, any lawsuits against 33 Customer that are based upon a claim that any item of Cyrun Application Software furnished under 34 this Agreement directly infringes a patent or copyright, and to pay costs and damages finally awarded 35 in any such suit, provided that Customer promptly notifies Cyrun in writing of any such claim, Cyrun is 36 given full control of the claim and any suit related thereto, and Customer cooperates with Cyrun in 37 rendering all requested reasonable non-monetary assistance for defense of the suit. If Cyrun looses 38 such suit, and it is ordered that the Cyrun Application Software be removed from the Customer's sites, 39 Cyrun shall refund to the Customer, the cost of the Cyrun Application Software. The foregoing states 40 the entire liability of Cyrun for patent or copyright infringement related to the Cyrun Application 41 Software. 42 43 23.0 LIMITS ON LIABILITY 44 23.1 Cyrun's sole undertaking under this Agreement is limited to furnishing and installing the 45 components of the SYSTEM in accordance with the terms and conditions of this Agreement. After 46 Final Completion, operation and use of the System are the sole responsibility of Customer. 47 48 23.2 The obligations of Cyrun under this Agreement shall not be interpreted, either expressed or 49 implied, as being for the benefit of or creating any obligation toward any person or entity other than Page 14 of 18 Pali Springs PD Prufcssional services and Softwam License Agreement 9/7/06 } Cyrun Initials: _ Customer Initials: 51095.1 I Customer, Cyrun's obligations under this Agreement being extended solely to Customer and for its 2 benefit. 3 4 23.3 FOR BREACH OF ANY WARRANTY OR OTHER OBLIGATION OF CYRUN IN THIS 5 AGREEMENT RELATING TO THE INSTALLATION OR OPERATION OF THE SYSTEM, OR ANY 6 COMPONENT OF THE SYSTEM, CYRUN SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, 7 INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST 8 INCOME, REVENUE OR PROFIT, INCREASED OPERATING EXPENSES, FAILURE TO REDUCE 9 OPERATING EXPENSES, OR LOST TIME OR INFORMATION, WHETHER SUCH DAMAGES 10 WERE FORESEEABLE OR NOT AT THE TIME THIS AGREEMENT WAS ENTERED INTO. 11 CYRUN'S LIABILITY FOR ANY AND ALL SUCH BREACHES COMBINED SHALL NOT EXCEED 12 IT'S COMMERCIAL GENERAL LIABILITY INSURANCE. 13 14 24 NOT USED 15 16 25.0 COMPLIANCE WITH LAWS AND ORDINANCES 17 Cyrun agrees to make itself aware of and comply with all federal, state and local laws and 18 regulations applicable to the performance of its obligations under this Agreement, including but not 19 limited to, all applicable federal, state, and local labor and employment laws and regulations. 20 21 26.0 COVENANT AGAINST CONTINGENT FEES 22 Cyrun warrants that it has not employed or retained any third party, other than a bona fide 23 employee of Cyrun, to solicit or secure this Agreement. Cyrun further warrants that it has not paid or 24 agreed to pay a third party, other than a bona fide employee of Cyrun, any fee, commission, 25 percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the 26 award or making of this Agreement_ If these warranties are breached or violated, Customer has the 27 right to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price 28 or consideration, or otherwise recover, the full amount of the fee, commission, percentage, 29 brokerage fee, gift, or contingent fee. 30 31 27.0 CONFLICTS OF INTEREST 32 Cyrun, its subcontractors and sub-suppliers shall perform all work under this Agreement in 33 conformance with all applicable statutes and regulations pertaining to conflicts of interest, including 34 but not limited to the financial reporting requirements and the conflict prohibitions of California law. 35 (See e.g. Government Code Section 1090 et sea., Government Code Section 87100 et seg. and 36 Title 2, Division 6 of the California Code of Regulations.) 37 38 28.0 NOT USED 39 40 29.0 FAIR EMPLOYMENT PRACTICES 41 In connection with the performance of services under this Agreement, Cyrun shall not, on the 42 grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, 43 medical condition, marital status, sex, sexual orientation or age, discriminate or permit discrimination 44 against any person or group of persons in any manner prohibited by Federal, State or local laws. 45 Page 15 of 18 Palm Springs PI)P` ionaI Services and$ottware Licensc Agreement 9/7/06 Cyrun Initials: /� , Cusmmer Initials: 516395.1 1 30.0 NOTICES 2 Any notice, consent or other communication required or contemplated by this Agreement 3 must be in writing and delivered in person, by U.S. mail, by overnight courier, by electronic mail, or 4 by facsimile to the intended recipient at the address and/or number set forth below- 5 6 7 Cyrun Customer Attn: Darrell Luera Attn Capt. Ron Starrs 125 Water Street, Suite A2 200 South Civic Santa Cruz, CA 95060 Palm Springs, CA 92262 Phone: (831) 458-0949 Phone: (760) 323-8120 Fax: (831)459-9406 Fax: (760) 323-8171 Email: Darrell@Cyrun.com Email: ron.starrs@palmsprings-ca.gov 8 9 Notice is effective on the day it is received by the intended recipient, provided that any notice 10 sent by facsimile or electronic mail is also simultaneously sent by first class mail deposited with the 11 United States Postal Service or by overnight courier. Each party may change its address for 12 notification purposes by giving the other party written notice of the new address and the date upon 13 which the new address is effective. 14 15 31.0 MISCELLANEOUS 16 17 31.1 No Rights in Third Parties. This Agreement is made for the benefit of Customer and 18 Gyrun and not for the benefit of any third parties. 19 20 31.2 Headings. The headings used in this Agreement are solely for the convenience of 21 the parties. They are not part of this Agreement and are not intended to affect the meaning or 22 interpretation of it. 23 24 31.3 Entire Agreement. This Agreement and the Agreement Documents constitute the 25 entire Agreement between the parties with respect to their subject matter and there are no other 26 representations, understandings, or Agreements between the parties regarding their subject matter. 27 This Agreement supersedes all prior Agreements, negotiations, representations and proposals, 28 written or oral. 29 30 31 A Approvals in Writing. All approvals or consents required or contemplated by this 31 Agreement must be in writing to be effective. 32 33 31.5 Successors and Assigns. This Agreement is binding on and inures to the benefit of 34 the parties and their respective successors and assigns. 35 36 31.6 Assi ng ment. This Agreement shall not be sold, transferred or assigned by either 37 party, or by operation of law, to any other person or persons or business entity, without the other 38 party's written permission. Any such sale, transfer or assignment, or attempted sale, transfer or 39 assignment without written permission, may be deemed by the other party to constitute a voluntary Page 16 of 18 Palm Springs PD pro/}fesal Services and Software License Agtcctnenl 9/7/06 Cyrun initials:!tV Customer initials: 516395.1 I termination of this Agreement and this Agreement shall thereafter be deemed terminated and void. 2 Notwithstanding the foregoing, the transfer of the rights and obligations of Cyrun hereunder to a 3 parent, subsidiary, or financially viable affiliate of Cyrun or to any successor-in-interest or entity 4 acquiring all or substantially all of Cyrun's outstanding voting stock or assets shall not be deemed an 5 assignment or transfer for the purposes of this Agreement, provided that (i) any such transferee will 6 have a financial strength after the proposed transfer at least equal to that of Cyrun prior to the 7 transfer, (ii) any such transferee assumes all the obligations of Cyrun hereunder, and (iii) Cyrun shall 8 not be released from this Agreement by virtue of such transfer. If such criteria are satisfied, it shall 9 not be deemed reasonable for Customer to withhold its consent to the proposed transfer, unless the 10 proposed transferee has a record of performance under similar Agreements which are unacceptable 11 to Customer under a reasonable standard of evaluation. Cyrun shall give Customer thirty (30) days 12 prior notice of any proposed transfer for which notice is required hereunder. 13 14 31.7 Choice of Law. Venue and Jurisdiction. Interpretation and enforcement of this 15 Agreement shall be governed by the laws of the State of California. The venue for any arbitration or 16 court proceeding arising out of or in connection with this Agreement shall be in Riverside County, 17 California. Jurisdiction of any such court proceeding shall be in the courts of the State of California. 18 19 31.8 Waiver. No waiver or breach of any provisions of this Agreement will constitute a 20 waiver or breach of any other provisions. Failure of either party to enforce any provision of this 21 Agreement will not be construed as a waiver of the right to do so. 22 23 31.9 Severability. If any provision of this Agreement is held to be invalid, illegal, or 24 unenforceable, the validity, legality, and enforceability of the remainder of the Agreement will not be 25 affected or impaired as a result. 26 27 31.10 Interpretation of the Agreement- Both Parties have had an opportunity to review and 28 consult with their respective attorneys regarding this Agreement, and have reviewed and revised this 29 Agreement. Accordingly, this Agreement shall be deemed to be the joint work product of both parties 30 and their respective attorneys. Hence, the rule of construction to the effect that any ambiguities are to 31 be construed against the drafting Party shall not be applicable to any interpretation of this Agreement, 32 and this Agreement shall not be strictly construed against either Party. 33 34 31.11 Counterparts. . This Agreement may be executed in one or more counterparts by the 35 parties hereto. All counterparts shall be construed together and shall constitute one Agreement. 36 37 31.12 Ownership of Data. Customer retains title, ownership and control of all data at all times. 38 39 31.13 Survival of Provisions. All provisions of this Agreement that by their nature would 40 reasonably be expected to continue after the termination of this Agreement will survive the 41 termination of this Agreement, including, without limitation, the following Sections and Paragraphs: 42 43 7.6 Independent Contractor Status 44 14.0 Warranties 45 18.5 Obligations Upon Expiration or Termination 46 18.6 Transition of Services 47 19.0 Confidential information qq Page 17 of 18 Palm Springs PD P`ofessYdiml Services and Software License Agreemenl 9/7/46 ' Cyrun Initials: Customer lnitials2 516395.1 1 22.0 Indemnification 2 23.0 Limits on Liability 3 4 Since the determination of actual damages for any delay in performance of this Agreement would be 5 extremely difficult or impractical to determine in the event of a breach of this Agreement, Cyrun, as 6 an exclusive result of its acts or omissions, shall be liable for and shall pay to the Customer the sum 7 of Two Hundred Fifty Dollars ($250.00) as liquidated damages for each weekday day that the 8 project is delayed by Cyrun for the installation of the Alliance PD Central product on each of the 9 Customer's two servers. Cyrun will be responsible for installing the Alliance PD Central product on 10 the client servers within 90 days of receipt of a certified letter stating that the client servers have 11 been installed on the client domain with SQL Server loaded along with all other server configuration 12 parameters (to be provided by Cyrun) completed by the Customer. This schedule may be extended 13 pursuant to the terms of this Agreement. The occurrence of a Force Majeure Event as provided in 14 Section 18.4 of this Agreement or a delay caused by the Customer or any third party shall not be 15 considered when calculating Liquidated Damages. 16 17 31.15 Non-Liability of Customer's and Cyrun's Officers and Employees. No officer or 18 employee of the Customer or Cyrun shall be personally liable to the other, or any successor in 19 interest, in the event of any default or breach by either party for any amount which may become due 20 to Cyrun or its successor, or for breach of any obligation of the terms of this Agreement_ 21 22 IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the 23 day and year first written above. 24 25 26 FOR CYRUN: FOR CITY OF PALM•SPRINGS, CA: 27 28 29 3�v 31 Signature or uthorized Representative) (Signature or Authorizeti 13ep1'esentative) 32 33 34 35 (Print or type name of signatory) (Print or type name of signatory) 36 37 38 I c7� C t i �'7`�����✓!u s 39 (Title of signatory) (Title`of signatory) 40 41 42 43 (Attest) 44 45 APPROVED BY CITY COUNCIL 46 rf cJ. �,�� 47 ry (Print or type name) �PPRO•/_ ' AS I"0 FOR r Page 18 of 18 •'. L L.! ilEy Palm Springs PD Prof - 1 mvices and Software t ic=o Agrccmcnt Cyrus Initials: l Customer Initials: Dr4$te 516395.1