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HomeMy WebLinkAbout04827 - TIBURON POLICE DISPATCH COMPUTER SETTLEMENT Tiburon Settlement Agr AGREEMENT #4827 MO7441 , 2-4-04 lL%1EJS'n�3QiF3 SETTLEMENT AGREEMENT AND RELEASE' This Settlement Agreement and Release ("Agreement") is made and entered into as of February 6, 2004 ("Effective Date"), by and among Tiburon, Inc., a Virginia corporation, ("'Tiburon'), and the City of Palm Springs, California, a Municipal corporation (the "City"). City and Tiburon are sometimes referred to individually as a "Party" and collectively as the "Parties." RECITALS A. City and Tiburon entered into those certain (1) Contract Services Agreement for Computer Assisted Public Safety System Agreement No. 4050, dated February 8, 1999, which was subsequently amended through Contract Amendment No. 1 which was entered into on or about April 26, 1999 (the "Installation Agreement"); and (2) Agreement for Extended Services dated April 20, 2001 (the "Maintenance Agreement")which are attached hereto and incorporated herein by this reference. B. A dispute now exists between the Parties regarding the Parties' respective rights and obligations under both the Installation Agreement and the Maintenance Agreement. City contends that Tiburon has not fully performed its obligations pursuant to the Installation and Maintenance Agreements. Tiburon contends that it has performed its obligations to date and that the unpaid balances of both the Installation Agreement and Maintenance Agreements are due and payable by City to Tiburon(hereinafter refereed to as the"Dispute") C. Effective June 17, 2003, the Parties entered into that certain Tolling Agreement to toll the applicable statutes of limitations regarding their respective claims (the "Tolling Agreement"). The Tolling Agreement was subsequently extended on or about October 31, 2003 by the Parties, and again on or about December 8, 2003. D. The Parties understand and agree that the Dispute arose out of the work performed by Tiburon pursuant to the Installation & Maintenance Agreements. The Parties desire to resolve all of the issues raised in the Dispute and enter into this Agreement, to FINALLY, FULLY and COMPREHENSIVELY settle the Dispute and all claims for damages, extra costs, delays or compensation of any nature whatsoever that are in anyway related to the Dispute so as to allow the Parties to continue their pursuits having fully, finally, comprehensively and conclusively resolved said matters, as well as all underlying contentions and allegations. AGREEMENT In consideration of the covenants herein contained, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto hereby agree as follows, in full and complete settlement of the Dispute and any and all claims for damages, extra costs, delays and/or compensation of any nature whatsoever that are in anyway related to the Dispute. 300\378022.10 1 �I Yi Fj� � �1'��/�� �f, �77" J_I!t ill�c�Ta:q/'�il^ 1. Payment. (a) Concurrent with the execution of this Agreement, City will pay to Tiburon the sum of$49,296 consisting of following outstanding amounts: (1) $24,648 for completion of MDS installation under the Installation Agreement; (2) and $24,648 for the Milestone Payment titled"Certification—Ready for Production"under the Installation Agreement; and (b) Subject to and within 5 days following the Parties' mutual agreement to a System Upgrade Plan (defined in Section 2 of this Agreement), or not later than June 30, 2004, City will pay to Tiburon $39,283.00 for the period July 1, 2003 through June 30, 2004 which is equal to the unpaid balance of the annual support fee payable under the Maintenance Agreement; (c) Subject to and within 10 business days following Tiburon's completion of all of the work set forth in the System Upgrade Plan (defined in Section 2 of this Agreement), City will pay to Tiburon $24,648 (the "Final System Upgrade Payment"), which is equal to the amount payable for Final System Acceptance under the Installation Agreement; and, (d) The City shall not be liable for any additional cost under the Maintenance Agreement for the period July 1, 2003 through June 30, 2004 except as set forth above. 2. System Upgrade. Tiburon will use commercially reasonable efforts to develop a plan to upgrade the software systems provided by Tiburon to City (the "System Upgrade Plan"). The System Upgrade Plan will include an Upgrade Project Statement of Work and an Upgrade Project Schedule, and upon acceptance by the Parties, will constitute an amendment to the Maintenance Agreement. City will fully collaborate with and cooperate in the development of the System Upgrade Plan as reasonably requested by Tiburon. Adoption of the System Upgrade Plan is subject to mutual agreement of Tiburon and City who shall not unreasonably withhold their respective consent to the System Upgrade Plan and who will use their best efforts to have (a) Tibuuron's assessment completed within sixty (60) calendar days from the Effective Date; (b) Tibuuron's proposal submitted within one hundred twenty (120) calendar days from the Effective Date, and (c) the System Upgrade Plan adopted as soon thereafter as the Parties mutually agree. Completion of all of the work set forth in the System Upgrade Plan is a condition precedent to the City making the payment set forth in paragraph 1 (c) of this Agreement. Among other provisions, the System Upgrade Plan will include,the following provisions: (a) The Upgrade Project Statement of Work will include, but is not limited to, a complete upgrade of the NT Computer Aided Dispatch Direct Delivery Product software ("CAPS software") that Tiburon installed pursuant to the Installation Agreement with the latest release(s) available from Tiburon at the time the business practice review is held. Tiburon will provide the City with a complete set of specifications for the software that is to be installed prior to installation. The Upgrade Project Statement of Work will provide for a complete testing of the CAPS software which will be performed after the CAPS software is upgraded and installed by Tiburon and Tiburon will ensure that all aspects of the software properly interface and comply with the specifications for all upgraded software installed by Tiburon. Tiburon will take any and all action reasonably necessary to resolve any deficiencies, defects, or other problems with the CAPS software after it is upgraded including, but not limited to, interfacing problems. The City's responsibilities under the Upgrade Project Statement of Work will include, but not be limited to, the procurement, installation, and configuration of all specified third party software and hardware items, providing Tiburon with remote system access, coordination/facilitation as 300\378022.10 2 necessary with other governmental agencies and vendors, providing all facilities as specified for system installation and training, and providing personnel to enter all City data and to review the results of all data conversion processes. (b) The Upgrade Project Statement of Work will include, but is not limited to, project management, business practice review(s), up to 20 days of train-the-trainer training ("Training"), data conversion, system testing, and go-live support. (c) City will be responsible for costs incurred by City in fulfilling its obligations tinder this Agreement and for incremental costs, if any, associated with third-party products including without limitation computer hardware upgrades and third-party operating software. Tiburon will be responsible for costs incurred by Tiburon in fulfilling its obligations under this Agreement and the City will not be responsible for any other costs or expenses except for those set forth herein. (d) City will permit Tiburon's technicians access to the City's facilities to conduct and document a thorough operating system analysis to support development of the System Upgrade Plan, and the City will provide appropriate technical and other personnel to assist with Tiburon's analysis. (e) The Upgrade Project Schedule will contain a provision that all work provided for in the Upgrade Project Statement of Work will be completed by a date certain that is mutually acceptable to Tiburon and City. 3. Effect on Other Agreements. Upon the execution of this Agreement, (a) The Parties agree that the Installation Agreement will be deemed fully completed and of no further force and effect including, but not limited to, all warranty provisions contained therein and obligations to make payments under the Installation Agreement. (b) The Tolling Agreement will terminate and be of no further force or effect. (c) The Maintenance Agreement will continue in full force and effect except to the extent it is modified as set forth in this Agreement which shall have precedence over the Maintenance Agreement. Upon completion of all work contemplated by the System Upgrade Plan, and all outstanding payments due in accordance with this Agreement, the Maintenance Agreement will terminate and be of no further force or effect. 4. Maintenance Agreement. The Parties will negotiate in good faith a new maintenance agreement ("New Maintenance Agreement") to take effect upon completion of work under the System Upgrade Plan. The Parties acknowledge that this Agreement sets forth maintenance support fees to be paid by City only through June 30, 2004. Until all work under the System Upgrade Plan is completed, the Maintenance Agreement as amended by this Agreement will continue in effect. Under the Maintenance Agreement,the City will pay Tiburon one half the "current annual support fee" for the year July 1, 2004 through June 30, 2005 on or before July 1, 2004, and will pay the remaining balance of the "current annual support fee"on or before January 1,2005. When all work under the System Upgrade Plan is completed, the Parties anticipate that the New Maintenance Agreement will take effect. The New Maintenance Agreement may include such terms and conditions as the Parties mutually agree, provided that the maintenance support fees established by the New Maintenance Agreement may not be 300\378022.10 3 increased from the levels set forth in the New Maintenance Agreement unless Tiburon provides written notice to the City of the increased fees at least 120 days before the new fees go into effect. 5. No Admission. Each Party hereto acknowledges and agrees that this is a compromise settlement of the hereinabove mentioned Dispute and all claims for damages, extra costs, delays and/or compensation of any nature whatsoever that is in anyway related to the Dispute, which is not in any respect to be deemed, construed or treated as an admission or a concession of any liability whatsoever by any Party hereto, including any public entity, person, firm,partnership, or corporation for any purpose whatsoever. 6. Investigation. The Parties agree that they have made such investigation of the facts pertaining to this Agreement and all matters pertaining hereto as each Party has determined necessary. This Agreement is intended to be final and binding among the Parties hereto, regardless of any claims or misrepresentations, promises made without the intention of performing them, mistakes of fact or law, or any other circumstances whatsoever, and under no circumstances shall any Party be entitled to set aside this Agreement, either in whole or in part. In entering into this Agreement, each Party assumes the risk of any misrepresentation, concealment or mistake, whether or not any Party should subsequently discover or assert for any reason that any fact relied upon by such a Party in entering into these releases was untrue, or that any fact was concealed from any Party hereto, or that such Party's understanding of the facts or of the law was incorrect or incomplete. 7. Release by Tiburon. Except as provided herein, Tiburon for itself and all of its predecessors, successors, assigns, representatives, attorneys or agents, does hereby fully and forever release and discharge City and all of its predecessors, successors, assigns, representatives, attorneys, agents, and employees of and from any and all actions, claims, demands, rights, damages, costs, expenses, license fees, attorneys fees, expert fees, consultant fees, other fees, interest, and compensation of any nature whatsoever, which Tiburon has or may hereafter accrue, including without limitation, any and all known and unknown, foreseen and unforeseen claims, damage and injury, relating to, or in any way, directly or indirectly, involving or arising out of any facts or circumstances related to the Dispute, the Installation Agreement and/or the Maintenance Agreement. 8. Release by City. Except as provided herein, City, for itself and all of its predecessors, successors, assigns, representatives, attorneys or agents, does hereby fully and forever release and discharge Tiburon and all of their predecessors, successors, assigns, representatives, attorneys, agents, and employees of and from any and all actions, claims, demands, rights, damages, costs, expenses, attorneys fees, expert fees, consultant fees, other fees, interest, and compensation of any nature whatsoever, which City has or may hereafter accrue, including without limitation, any and all known and unknown, foreseen and unforeseen claims, damage and injury,relating to, or in any way, directly or indirectly, involving or arising out of any facts or circumstances related to the Dispute , the Installation Agreement, and/or the Maintenance Agreement. 9. Section 1542 Waiver. Except as provided herein, it is the intention and understanding of the Parties hereto, in executing this instrument, that it shall be effective as a full and fmal accord and satisfaction and compromise and release, of each and every settled or 300\378022.10 4 released matter. In furtherance of this intention, the Parties acknowledge that they are familiar with Section 1542 of the Civil Code of the State of California which provides as follows: "A general release does not extend to claims which the creditor does not know or suspects to exist in his favor at the time of executing the release,which, if known by him, must have materially affected his settlement with the debtor." Except as provided herein, the Parties hereby expressly waive or relinquish any right or benefit which they have, or might have, under Section 1542 of the Civil Code of the State of California and all other similar provisions of law of other jurisdictions to the fullest extent allowed by law. Except as provided herein, in connection with such compromise, waiver and relinquishment, the Parties acknowledge that they are aware that they may hereafter discover facts in addition to or different from those which they now know or believe to be true with respect to the subject matter of this instrument, but that, except as is otherwise provided herein, it is their intention hereby to (ally, finally and forever settle and release all matters, disputes and differences, known or unknown, suspected or unsuspected, which do now exist, may exist, or heretofore have existed, and that in furtherance of such intention, the release actually given herein shall be and remain in effect as a full and complete general release, notwithstanding the discovery or existence of any such additional or different facts. 10. Limitation of Waivers and Releases. The Parties expressly agree that the waivers and releases contained in the Agreement shall not prevent, limit or be deemed as a waiver and/or release of any of the following: (a) Tiburon shall not be deemed to have waived and/or released any and all actions, claims, demands, or rights it may have or hereafter accrue for damages, costs, expenses, attorneys fees, expert fees, consultant fees, other fees, interest, and compensation of any nature whatsoever against City that are in any way related to City's obligations set forth in paragraphs 1 and 4 above; and, (b) City shall not be deemed to have waived and/or released any and all actions, claims, demands, or rights it may have or hereafter accrue for damages, costs, expenses, attorneys fees, expert fees, consultant fees, other fees, interest, and compensation of any nature whatsoever against Tiburon that are in any way related to Tiburon's obligations set forth in paragraphs 2 and 4 above. 11. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of California. Each Party hereto agrees that the laws of the State of California shall apply and that any action brought hereunder shall be subject to the laws and statutes of the State of California. The Parties expressly agree that any disputes, disagreements or actions shall be venued with the state or federal court located in San Diego County, State of California. The Parties stipulate that they are subject to the jurisdiction of the state and federal courts located in San Diego, California and hereby expressly waive any defense to assertion of personal jurisdiction by that court in such an action. 12 Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all of the Parties. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision 300\378022.10 5 whether or not similar, nor shall waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Parties making the waiver. 13 Binding on Successors. This Agreement and the covenants and conditions contained herein shall obligate, bind, extend to and inure to the benefit of the Parties in each of their respective successors in interest, including, but not limited to, their administrators, executors, owners, partners, officers, directors, shareholders, legal representatives, assignees, attorneys, successors, and agents or employees of the Parties hereto. 14. Representation of Tiburon. Tiburon affirmatively represents that it has been represented by Hopkins & Carley of San Jose, California, who are attorneys at law of its own choosing. Tiburon has read this Agreement and has had the terms used herein and the consequences thereof explained by its above-named attorneys of choice. 15. Representation of Citv. City affirmatively represents that it has been represented by Aleshim &Wynder, LLP of Irvine, California, who are attorneys at law of its own choosing. City has read this Agreement and has had the terms used herein and the consequences thereof explained by its above-named attorneys of choice. 16. Construction. This Agreement shall not be construed against the party preparing it, but shall be construed as if all Parties jointly prepared this Agreement. Any uncertainty and ambiguity shall not be interpreted against any one party. This Agreement is to be performed in California and it is to be interpreted, enforced, and governed by and under the laws of the State of California. Language in all parts of the Agreement shall be in all cases construed as a whole according to its very meaning. 17. Entire Agreement. This Agreement contains the entire understanding and agreement between the Parties, and the terms and conditions contained herein shall inure to the benefit of, and be binding upon, the heirs, representatives, successors and assigns of each of the Parties hereto. No other representations, covenants, undertakings, or other prior or contemporaneous agreements, oral or written, respecting such matters, which are not specifically incorporated herein, shall be deemed in any way to exist or bind any of the Parties hereto. The Parties hereto acknowledge that this Agreement has been executed without reliance upon any such promise,representation, or warranty not contained herein. 18. Remedies. A Party may seek any form of equitable relief, including specific performance and injunction,where the other Party's continued or threatened breach of a material obligation or undertaking would result in irreparable injury. All rights and remedies conferred or to be conferred upon an aggrieved Party under this Agreement is cumulative and not exclusive of any other rights or remedies available at law,in equity,under this Agreement, or otherwise. 19. Additional Actions. Each Party will execute, acknowledge, or verify any additional document and take such other action as reasonably necessary or reasonably requested by the other Party to effectuate the purpose of this Agreement. Without limiting the foregoing in any way, Tiburon will provide City with all products and services necessary to deploy the latest versions of Tiburon Application software products currently licensed to City. 20. Enforcement Expenses. If any Party brings a court action to enforce the Party's rights hereunder,the prevailing Party will be entitled to recover its costs and expenses, including 300078022,10 6 reasonable attorneys' fees and costs of reasonable investigation, preparation, and professional and expert consultation, incurred in connection with such action, including any appeal thereof. 21. Severability. The invalidity, illegality, or unenforceability of any part hereof will not impair the validity, legality, or enforceability of the remainder. 22. Counterparts: Facsimile Signature. (a) This Agreement may be executed in multiple duplicate counterparts by each Parry's signing any couuterpart. When so executed, such counterparts constitute a single agreement. (b) A Party may execute and deliver this Agreement by signing the signature page and electronically transmitting a facsimile thereof. 23. Notices. Any notice required or permitted under this Agreement must be in writing, addressed as follows: Ifto Tiburon: Tiburon, Inc. Attention: Contract Administrator 39350 Civic Center Drive Fremont, California 94538 (510) 742-1057 (facsimile) If to City: City of Palm Springs Attention: City Manager 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Telephone(760) 323-8299 (760) 323-8207 (facsimile) [Remainder of page intentionally blank] 300\378022.10 7 Notice will be deemed effective (a) on the date of personal delivery; (b) one business day following deposit with a nationally recognized overnight courier or confirmed facsimile transmission; or (c) three business days following deposit with the United States Postal Service by certified or express mail, with return receipt requested and postage prepaid. Either party may change its address for notice by providing notice as required in this Section. The Parties have executed this Agreement as of the Effective Date. Company: City: TIBURON, INC. CITY OF PALM SPRINGS, a Virginia corporation a Municipal corporation By: Name: �i - �-:✓ By: Title: acr f TIBURON, INC. a Virginia corporation ATTEST: By: Name: C*AA(.L L u Title: Ll 49 'v eE AOMW CITY CLERK OF THE CITY OF PALM SPRINGS APPROVED AS TO FORM AND CONTENT ALESHIRE &WYNDER,LLP 300A378022,10 8 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR CONTUTER ASSISTED PUBLIC SAFETY SYSTEM THIS.CONTRACT.SERVICES AGREEMENT (herein "Agreement"), is made and entered t into this day of JatCia' 1999,by and between the CTPY OF-PALNISPPTVG'S as munictpat`— —'-- corporation, (herein "City") and Tiburon, Inc., a Virginia Corporation (herein "Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of industry leader work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more industry leader firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits. Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 15 Familiarity with Work. By executing this Contract, Contractor warrants 627/014084-0008/3225425 1 a02/02/99 that Contractor (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or $25,000, whichever is less; or in the time to perform of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively nust be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services . specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2.0 COMPENSATION 617/014084-0008/3225425 1 a02/02/99 -2- 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference, but not exceeding the maximum contract amount of Seven Hundred Three Thousand One Hundred Ninety Six and 00/100 ($703,196) (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation; but not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no later than the first (1st) wonting day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last wonting day of the month. 3.0 P'EABI"ORMANCESCREDU1LE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding two hundred ten (180) days cumulatively. 3.3 Force Majeure. The time period(s) specified in the' Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or, negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 627/014084_0008/3225425.1 a02/02/99 -3- In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.3.1 Delays by the City If the City is unable to provide services and/or facilities as defined in the Statement of Work, and/or fulfill the City's responsibilities, and/or causes delays to the project beyond Contractor's control, then Contractor shall notify the City in writing and the City shall take prompt action to resolve the problem. If the City is unable to resolve such problems in sufficient time to avoid delays to the project and prevent Contractor from incurring additional costs, then Contractor shall have the right to modify the Price and Payment Schedule, as set forth in this subsection 3.3.1 Contractor shall not exercise this right unreasonably. The City shall be liable only for actual and necessary time and costs incurred by Contractor relating to delays referenced above. Such costs may include, but not be limited to, non-refundable plane tickets, necessary travel and living expenses for staff on site at time of delay, equipment rescheduling or storage charges, additional equipment maintenance charges, shipping fees, costs of any necessary services should Contractor be required to repeat any service provided prior to the delay (e.g. re-training or re-testing), and the cost of Contractor's services necessary to upgrade the operating, application, and hardware systems in such case as Contractor offers a new release during the delay. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance. 4.0 C®®IDII+lATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Darrell Bertness 39350 Civic Center Drive, Suite 280 Fremont, Ca. 94538 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written ezvoinoea-000e/322sn2s.x .02/02/99 —4— i approval of City. 4.2 Contract Officer. The Contract Officer shall be James Runge, or such other person as may be designated by the City Manager of the City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available, to persons or entities with offices located in the Coachella Valley ("Local Subcontractors")- Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a G27/014084-0009/22542S 1 a02/02/99 -5- member of any joint enterprise with Contractor. 5.0 INSURANCE, INDI MNWICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis. If the Contract Sum is $25,000.00 or less, the policy of insurance shall be written in an amount not less than either (i) a combined single limit of $500,000.00 or (ii) bodily injury limits of $250,000.00 per person, $500,000.00 per occurrence and $500,000.00 products and completed operations and property damage limits of $100,000.00 per occurrence and $100,000.00 in the aggregate. If the Contract Sum is greater than $25,000.00 but less than or equal to $100,000.00, the policy of insurance shall be in an amount not less than either (i) a combined single limit of$1,000,000.00 for bodily injury, death and property damage or (ii)bodily injury limits of$500,000.00 per person, $1,000,000.00 per occurrence and $1,000,000.00 products and completed operations and property damage limits of $500,000.00 per occurrence and $500,000.00 in the aggregate. If the Contract Sum is greater than $100,000.00, the policy of insurance shall be in an amount not less than $1,000,000.00 combined single limit. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Contractor and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of $250,000.00 per person and S500,000.00 per occurrence and property damage liability limits of $100,000.00 per occurrence and $250,000.00 in the aggregate or (ii) combined single limit liability of $500,000.00. Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Policies of such other insurance, including professional liability insurance, as may be required in the Special Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are cancelled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to 627/014084-0008/3225425.1 .02/02/99 -6- the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following "cancellation" notice: CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE E)MIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL THIRTY (30)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER NAMED HEREIN. [to be initialled] Agent Initials The Contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or persons for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to Lhis Section 5.1. 52 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each ,of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys'fees incurred in connection tlterewrth; (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in 62"/014089-0008/3225925 1 a02/02/99 -7- connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys'fees. (d) In no event shall Contractor be liable for any loss.or damage arising from or related to (1) the accuracy or completeness of City's data: or (11) the operation, delay or failure of programs, software, or equipment provided by Contractor. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Director of Administrative Services or designee of the City ("Director of Administrative Services") due to unique circumstances. In the event the Director of Adrrnistra-tive Services determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the Director of Administrative Services; provided that the Contractor shall have the right to appeal a determination of increased coverage by the Director of Administrative Services to the City Council of City within ten (10) days of receipt of notice from the Director of Administrative Services. 6.0 RECORDS AND RE)°fAI~TS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or e27/01aoe4_000ei32z5425 i ao2i02i99 -8- events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full_ and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, reports and records prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be, the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the drawings, reports and records hereunder. Any use of such completed drawings, reports and records for other projects and/or use of uncompleted drawings, reports and records without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such drawings, reports and records for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any drawings, reports and records prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the pnor written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and 627/014094-0008/3225425.1 a02/02/99 -9- completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any parry's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) Q any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to pursuant to the terms of Section 13.b of the Agreement for Extended Services executed by the parties herein concurrently herewith. 7.8 Terinination Prior to Expiration Of Term. This Section shall govern any 627/014084-0008/3225425 1 a02/02/99 -10- termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be. determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, at the City's sole option, terminate this Agreement, if such failure is not remedied by the Contractor within thirty (30) days of written notice to the Contractor of such failure. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment 8.0 CITY OFFICERS AND EMTLOYEES: NON-DISCRIAUNATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not 627/014064-0008/3225425.1 .02/02/99 -11- paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MESCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, industry leader mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severabilitv. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Ag eement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering 627/014084-0008/3225425.1 .02/02/99 -12- IN WITNESS WFIEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRING'S) a municipal corporation /r ;1 City Manag(Ir t ATTEST: City Clerl{ h `x t 5" a APPROVED AS TO FORM: City Attorney CONTRACTOR: TIBURON, INC., a California corporation jBy: /-- _ r Cra gam. Nelson Vice President, Business Development [END OF SIGNATURES] G27/014064-0008/3225425 1 z02/02/99 EJ,=J T "A" SCOPE OF SERVICES 1. GENERAL SERVICES OVERVIEW. Contractor shall provide, install and assure the proper operation of its Computer Assisted Public Safety ("CAPS") system, consisting of Contractor's Computer Aided Dispatch Direct Delivery Product ("CADMI)P") system and Records Management System Direct Delivery Product ("RMS/DDP") at the City. The CAPS system shall be a highly functional and integrated dispatch and records automation system which combines the strengths of Contractor's premier CAD/DDP and RMS/DDP products. Contractor represents that the combined premier CAD/DDP and RMS/DDP products are a tightly integrated solution to the Palm Springs Police Department ('PSPD"), geared towards total automation of the modern public safety organization at PSPD. The CAPS system supports the full range of public safety automation needs of PSPD, including: Allowing the CAD/DDP user to query all applicable records databases, including incidents, locations, vehicles, personnel and property. Providing dispatch users with seamless access to records management, message switch related systems. © Providing for the automated transfer of incident information from dispatch to the records system. Providing a common geographic file to support the address validation requirements of both CAD and RMS processing. Contractor shall provide City with a five-point Extended Support Program ("ESP") to assist City personnel with the successful operation of the CAPS system, including the CAD/DDP and RMS/DDP systems, pursuant to a separate agreement executed by Contractor and City concurrently herewith ("ESP Maintenance Agreement"). 2. CAPS SYSTEM OVERVIEW. 2.1 CAD/DDP Capabilities. Whether implemented within the CAPS environment with RMS/DDP or as a stand-alone dispatch system, Contractor's CAD/DDP is a proven, effective solution to the challenges facing today's emergency communications environment. The key capabilities of CAD/DDP as proposed for City are as follows: Open System Architecture Client-Server Environment E) I➢ IT "A" e27i01a0en-0008/3225425 , aoTHONTRACT SERVICES AGREEMENT Windows NT Workstations • Graphical User Interface • Flexible Display Configuration • Function Key & Command Line.Processing • E-911Interface • Geographic Processing • Dynamic Unit Recommendation • UnitlIncident Status Monitoring Distributed Status Backup CAD/DDP, with its Microsoft Windows/NT client workstation, is designed to allow user operation via the use of a mouse, keyboard, and/or function keys. Working with CAD/DDP's graphical user interface (GUI), users can interact with the system by clicking on screen data and buttons that allow them to select units for dispatch, change the status of units and perform queries. "Drag-and-drop" facilities can be used to move units to and between incidents. These functions can also be performed via keyboard command or function key with the final choice left to the individual user. Transaction names, GUI buttons, function keys and sib ificant portions of the screen layout and display sequence can be tailored to provide the best function based upon local use of the system CAD/DDP uses the many advantages of the GUI environment to simplify the task of call entry, while retaining the highest level of functionality. Via a dynamic pop- up window, the call taker can simply scroll through all valid incident types to select the most appropriate code. The selected incident code is then automatically moved into the incident type field on the screen and the cursor moves to the next field for further input. 2.2 RMS/DDP Capabilities. Contractor's RNiS/DDP system is the most functionally rich and flexible law enforcement records management system available today. The system records all key operational information and includes tools for analysis and management functions. An integrated, modular solution, RMS/DDP offers a variety of features and facilities: Incident Tracking • Master Name System • Master Location System • Warrant Tracking • Property/Evidence Management • Criminal Records • Juvenile Records Traffic Records Investigative Case Management • UCR/IBR Statistics Crime Analysis • Special Flags -16- 6T//014084-0008/3225425 1 a02/02/99 • Gang Activity Personnel Training • Officer Activity • Bicycle Registration • General Inquiries Contractor's RMS/DDP product is built upon an open system, client server-based architecture, providing a foundation which allows City to also implement the Contractor's RMS GUT workstation and an Oracle Relational Database Management System. 2.3 State Interface. As part of this plan, Contractor shall deliver its integrated State/NCIC/NLFTS interface. This system will provide users with a single interface to the CLEFTS system, using Contractor's latest extemal interface facilities. Using a set of standard (Contractor-supplied) and unique (client- developed) screen formats, authorized dispatch and records users will have access to: • State of California Criminal History Records • State DMV Records • NCIC/CLETS 2.4 Requisite hardware/System Software Based upon Contractor's assessment of PSPD's processing requirements, Contractor's CAPS system is being proposed with two HP/UX servers, configured with the following features: 2.4.1 CAD/DDP &_ State Interface Server HP CAD Server Model D230 256 IVfb Memory • 8 Gb Intemal SCSI Disks in Mirrored • 12 Gb SCSI Disks in Auto RAID Disk Array 4mm DAT Tape Drive • 10/100 Mbps Ethernet NIC Console • HP-LTX Operating System C Compiler • Cobol Compiler 2.4.2 RMS/DDP Server • HP RMS Service Model D270/1 • 256 Mb Memory • 27 Gb SCSI Disks 4mm DAT Tape Drive 10/100 Mbps Ethernet NIC -17- 627/014084-0008/3225425.1 a02/02/99 • Console ® HP-Un Operating System C Compiler • Cobol Compiler A complete list of the hardware and system software proposed for the PSPD is listed in Appendix A. 3. PROPOSED SERVICES To ensure the smooth and timely transition to Contractor's Computer Assisted Public Safety system, Contractor will provide the following services as part of the product delivery process: • hardware Integration- Contractor will assume responsibility for the sizing, configuration, ordering, delivery, staging and setup for the CAD server, CAD Network, RMS server, and dispatch workstations. City, through this Agreement, is purchasing the CAPS system and optional products and software consistent with Contractor's recommendations. Pursuant to such recommendations by Contractor, City, in entering into this Agreement, relies on Contractor's representation that the CAPS system and optional products and services purchased by City herein are defined in this document as the needs of PSPD's hardware and network components. Subject to such reliance by the City, City will retain responsibility for its hardware and network components, not provided to City under this Agreement. All Contractor-supplied hardware will be staged in Contractor's Staging Center before delivery to the City site. System Installation - Contractor will install all Contractor provided application software on the CAD and RMS servers and will configure the software distribution server. Contractor will provide training on the proper use of the software distribution server, enabling City to assume responsibility for the distribution of all software to the client workstations. General File/Table Build - Contractor will define a set of test and production files and will provide a base set of code tables. Contractor will also provide training on the proper use of the Contractor tools for code table generation. Contractor will convert all code table entries. Geographic File Conversion - Contractor's proposal includes the conversion of the existing CAD geographic file to a Contractor TOF file format and the upload of that file for use in the proposed CAPS system. Data Conversion - Contractor will provide a standard conversion program and populate the RMS/DDP database with the converted data. Data fields requested beyond the standard conversion provided will be an additional cost. Contractor understands the PSSI data has been converted but not validated by the Desert Information Management System ("DINMS"). Upon validation Contractor will include this data in the conversion. ® Interfaces - As part of the installation process, Contractor will establish an interface to the lb- 629/O1?OB9-0008/3225J25.1 a02/02/99 Palm Springs E-911 system and to the CLETS/NCIC system. Technical User Training - Contractor will provide 40 hours of onsite CAD/DDP User Training, 40 hours of onsite RMS/DDP User Training, and 24 hours of onsite System Administration Training. • Functional Walk-Through - As part of the user training program, Contractor will provide a functional walk-through with City personnel to validate and test the functionality of the newly installed CAPS system. Tiburon shall assure that the CAPS system is completely functional prior to such walls-through. Go-Live Support - Contractor will provide up to two days of on-site support for each system, i.e., two days for CAD/DDP and two days for RMS/DDP, at the point each system is placed into a production status. • Maintenance Support - Immediately following cutover/acceptance of the system, Contractor will provide ongoing support through the TASS Help Desk. TASS support is available 24 hours per day, 7 days per week for CAD/DDP and 11 hours per day, five days per week for RMS/DDP. A complete description of Contractor's ESP Maintenance Program shall be subject to the terms of the ESP Maintenance Agreement. Contractor's proposal is based upon a plan to deliver the above services as set forth in the Schedule of Performance at Exhibit "U. Contractor shall provide additional services upon request from the City and at an additional fee to the City, pursuant to Contractor's price schedule attached hereto as Appendix D. 4. CAPS SYSTEM AND EPS MAINTENANCE PROGRAM COSTS. The following are the costs for the CAD and RMS server configurations, described at Section 2 above of this Exhibit "A", and EPS Ma ntenance Program as described at Section 3 above in this Exhibit "A" and as further provided under the EPS Maintenance Agreement. Product Service Price Annual Maintenance ® CAD Server $ 18,700 $ 6,545 Multi-jurisdictional $ 7,480 Multi-agency (Police/Fire) $ 8,440 Implementation Services $ 52,000 • Hardware $ 32,608 • Software Distribution Server $ 7,500 $ 2,625 Training Services $ 7,000 Subtotal $133,728 $ 9,170 -19- 627/014084-0008/3225425.1 a02/02/99 Product/Service Price Annual Maintenance • RMS Server $49,300 $12,325 • Multi-jurisdiction $ 7,480 • Implementation Services $ 52,000 • Hardware $44,062 • Training Services $ 7,000 Subtotal $159,842 $12,325 Subtotal $293,570 5. CITY-ADDED OPTIONS. Contractor shall further provide the following products and services to the City. The prices for the products listed below do not include sales tax. 5.1 Dispatch Workstation. In addition to the CAD and RMS server configurations, Contractor is proposing four personal computers for use as dispatch workstations. These dispatch workstations are configured as follows: • Dell Optiplex Gb 20OMHz Pentium • 32Mb Memory • 4.3Gb EIDE HDD • 1.44Mb FDD • Intellimouse Sound Card & Speakers • 10/100Mbps Ethernet NIC • CD-ROM ® Windows iQT Colorgraphics Dual Display Card 19" Color Displays (1280 x 1024) Product Service Price Annual Maintenance • Dispatch Workstation Software $ 9,600 $840 • Implementation Services $ 1,300 • Hardware $14,096 Option Total $24,996 $840 5.2 CAD Activity Reporting System - CARS. CAD/DDP provides a range of standard on-line inquiries and reports. To supplement these on-line functions, Contractor offers a comprehensive ad hoc report generation facility, and PC-based CAD Activity Reporting System (CARS). CARS provides an ability to use an ODBC- compliant relational database and 4th-generation report facilities for ad hoc report generation. Using CARS, the user can create a variety of predefined ad hoc inquiries and reports for single and multiple agencies being dispatched through CAD. -20- 629/014094-0008/3225425 1 a02/02/99 Unit and event information can be transferred to a dedicated Pentium PC processor and stored in an ODBC-compliant Oracle Relational Database Management System. This information will then be available for report generation using a variety of relational facilities. This information can also be imported into OLE- compatible products such as Microsoft Excel. With this option, Contractor is providing licenses fees and workstation hardware to support one (1) CAD user. This pricing includes the workstation hardware, Oracle Relational Data Base, and Crystal Report which is necessary for the functioning of this option. The price for this option is summarized as follows: Product Service Price Annual Maintenance Software License Fees $ 8,400 $ 2,940 implementation Services $26,000 Oracle $ 1,400 Crystal Reports ( 1 user license) $ 495 Hardware $ 6,936 $ 832 Dell or equivalent server 333MHz Pentium 11 128Mb RAM 512K Burst Cache 3 x 4.5Gb SCSI Hard Drives RAID disk controller 12X CD-ROM 3.5"Diskette Drive 10/100 Ethernet adapter Keyboard &Mouse Tape backup WmdowsNT Server 4.0 15" Monitor $ 389 $ 47 Option Totai $43,620 $3,519 Contractor represents that the products purchased by City under this Agreement, including workstation hardware, Oracle Relational Data Base and Crystal Reports are sufficient for this option to function successfully. 5.3 RMS GUI Workstation Software. Contractor's RMS/DDP system supports the simultaneous use of both standard ASCII text-based terminals, and GLII-based client workstations. Contractor's RMS GLTI Workstation provides the user with a graphical user interface (GUI) based upon Microsoft Windows technology. This workstation represents the latest in technology, making the user's job easier, as well as more efficient. The RMS GLII Workstation operates in either a Microsoft Windows95 or NT environment depending on City's preference. -21- 627/014089-000ei3z2e425.1 aozioziss The workstation is organized around the various functions of a police or fire department, allowing the user to intuitively navigate throughout the system by clicking on a tab within the various applications. For example, within the Incident System, the workstation presents the user with the components, via tabs, such as Face Sheet, Property, Persons, Vehicles, etc. The RMS GUI Workstation provides user help in each data field which the user can access via a click of a mouse or a standard windows function key (F1).. The system has been designed to allow both keyboard, as well as mouse driven navigation. Contractor's client software is a WIN'2 compliant application, which will operate on any IBM compatible PC, which is capable of supporting the Windows 95/NT operating systems. While the client software will operate on a wide variety of existing IBM compatible PCs, Contractor's current reconnnendation for the RMS workstation configuration, which Tiburon is providing to City under this Agreement, is as follows: Pentium 133NMz or greater 16Mb Memory ® 1GB EIDE HDD 1.44Mb FDD 10/100 Mb/sec Ethernet Card (Token Ring, FDDI, and ATM LA is are also supported) 17" Color Displays Ethernet Adapter Keyboard and Mouse Microsoft Windows/95 With this option, Contractor is providing pricing of license fees to support up to 32 RNIS GUI Workstations. Product Service Brice Annual Maintenance ® GUI Workstation Software $ 12,640 $ 3,160 Implementation Services $ 1,300 Training $ 2,000 Option Total $ 15,940 $ 3,I60 The GUI workstation option requires a minimum quantity of twenty (20) workstations. Contractor's pricing for City assumes 100% of the total RMS/DDP Users indicated on the migration worksheet. 5.4 Oracle RDBMS The RMS/DDP product is installed with Contractor's Relational Data System. As an option, Contractor is proposing Oracle's Relational Data Base for use with the RIvIS/DDP product. With this option, Contractor is providing license fees to _22 s27/01ADBd-0008/322sg2s 1 .02/02/99 support sixteen (16) concurrent RMS users. In addition, RMS/DDP provides the capability to generate ad hoc report with standard PC tools such as Crystal Reports. This approach provides quick, easy-to-use access to the information required by law enforcement personnel. This option requires the purchase of Oracle's Relational Data Base. The price for this option is summarized as follows: Product Service Price Annual Maintenance RMS/DDP RDBMS Oracle Server $12,500 $ 2,000 Implementation Services $19,500 Oracle Concurrent User License $22,500 $ 3,584 Crystal Reports (quantity 1) $ 495 Total $54,995 $ 5,554 'kincludes 2 days of training Contractor's pricing assumes 50% of City's Workstation represents concurrent user number. 5.5 Mobile Computing Solution (MCS). The Mobile Computing Solution (NMC) combines the Automated Field Reporting (AFR) and Mobile Data Computing (Mako) abilities. 5.5.1 Automated Field Reporting. Contractor's field reporting system supports the collection of data from a variety of input sources, including automated dictation systems, transcription units, and field officers with laptops. Using AFR/DDP, the report writing effort is simplified, report quality is enhanced, and the information is quickly made available to those who need it. In addition, the same user interface is used whether the report is entered on a workstation in the station, or a laptop in the field. The report is stored and maintained on the AFR/RCS (Report Control Server). Once entered into AFR/DDP, reports are disseminated automatically throughout the system for approval, supplementation or correction. Once approved, the report is loaded into the appropriate areas of RMMS (e.g., incident, persons, vehicle and property). This approach maintains a common look and feel throughout the system, increasing user satisfaction and reducing training required. In addition, information is quickly and accurately made available throughout the department. With this option, Contractor is providing license fees to support for thirty (30) laptop users. 5.5.2 MAKO - Mobile Data Computing. The Tiburon MAKO Mobile Data Computer (MDQ product extends graphical workstation capabilities to a wireless environment. It is designed to work in conjunction with, and is a logical extension -23- 627/014084-0008/3225425 1 z02/02/99 of, Tiburon Message Switch, Field Reporting, Dispatch, and Records products. In addition to wireless operations, Mako may be also be configured as a graphical desktop workstation operating on a client LAN. Mako operates as a series of Windows NT applications categorized as communications, user interface and/or utility. The Tiburon Unix transaction processor, Tiger/tp, and Message Switch provide host services to Mako. Mako utilizes private and public radio frequency communications in a mobile laptop environment to receive dispatch information, send status changes, run remote inquiries and, in some environments, transfer case reports to a server. The major features of Mako are: Digital dispatching ® Digital reporting of status activity Storage of inbound and outbound messages Forms caching Local, state and national data base inquiries CAD information requests Report transfer for field reporting City will provide laptop computers or PC workstation terminals to support the users, according to Contractor's specifications. Product Service Price Annual Maintenance Workstation Software License Fees $ 52,000 $ 15,411 Mobile. Computing Sever License Fee $ 32,000 $ 11,200 Implementation Services $ 68,060 14ARDWARE- RCS Server $ 16,980 $ 2,038 Dell or equivalent PII-266 Dual 2001\/II3z Pentium Fro 512Mb RAM 512K Burst Cache 9 Gb RAID disk 12X CD-ROM Sound capability 3.5" Diskette Drive 10/1 00 Ethernet adapter 4/8 Gb DAT tape drive Keyboard &Mouse WindowsNT Server 15" Monitor $ 398 $ 47 Option Total $169,438 $ 28,696 -24- 627/o14oe4-o0oe/322s42s 1 .02/02/99 This fee represents pricing for software for seventy (70) workstations for automated reporting and and forty (40) licenses with mobile data computing and automated reporting capabilities, creating the mobile computing solution. 5.6 Jail Booking Module. The current Tiburon BP Phoenix Division RMS contract provided through the Desert Information Management System (DIMES) group to the PSPD specifies tailored jail booking sheets and reports. If it is determined that the RMS/DDP jail booking capabilities do not meet the needs of the PSPD further discussion and contract negotiation on this option will be necessary. At this time, it is not known if an interface option is feasible or available. 5.7 False Alarm Billing Module Product Service Price Annual Maintenance ® License Fees $ 1,600 $560 Implementation Services $13,000 Option Total $14,600 $560 This price does not include the City's specific policy guideline customization for this option. 5.8 Refresher Training. 2 Weeks of on Site Refresher Training on the entire CAPS system to all users of the CAPS system at PSPD, including Travel and Living expenses. Product Service Price Annual Maintenance Services $12,376 $N/A Travel and Living Expenses $ 2,300 $N/A Option Total $14,676 $N/A -25- 627/014084-0008/3225425.1 a02;0,/99 EXHIBIT "C" SCHEDULE OF COMPENSATION Product Service Price Annual Maintenance CAD BASELINE, $133,728 $ 9,170 Multi-agency (Police/Fire) Multi-jurisdiction CAD Network N/C RMS BASELINE $159,842 $ 12,325 Multi jurisdictional Subtotal $293,570 $ 21,495 I7MONS: DISPATCH WORKSTATIONS $ 24,996 $ 840 CAD ACTFVITY REPORTE,4G SYSTEM (CARS) $ 43,620 $ 3,819 Hardware is included RMS GUI WORKSTATIONS $ 15,940 $ 3,160 ORACLE $ 54,995 $ 5,584 Crystal Reports MOBILE COMPUTING SOLUTION $169,438 $ 28,696 Automated Field Reporting* Mobile Data Computing *Tlus includes the RCS hardware and Software FALSE ALARM BILLING MODULE $ 14,600 $ 560 REFRESHER TRAIlVING $ 14,676 TOTAL: $6NIKS_ 64,154 Sales Tax 7.75% $ 13,472 Sales Tax is based on Hardware Cost and License Fees License Credits* ($ 69,600) Performance Bond $ 10,311 TOTAL COST $586.018 -27- 629/019094-0008/]225A25 1 .02/02/99 Please note the following: ® This credit is based on the DIMES contract paid in full with the DIMES group transferring the licenses to the City of Palm Springs. By this signature, City representative accepts the proposal to Contractor's CAD/DDP and RMS/DDP baseline product. Select options by initialing on line after option. EXHIBIT "D ' SCHEDULE OF PERFORMANCE The prices assume that all the City of Palm Springs supplied services and facilities will be provided according to an agreed to schedule which ensures that Tiburon is able to supply all services within a period of one hundred twenty 120) days from the written notice to proceed for CAD/DDP, RMS/DDP, CARS, Automated Field Reporting and False Alarm Billing Module. Mobile Data Computing (Mako) and Refresher Training will be supplied within a period of one hundred eighty (180) days from the written notice to proceed. -28- 627/014094-0009/3225425.1 a02/02/99 PRICING ASSUMPTIONS: The prices stated above are based upon the following assumptions: • Contractor shall install baseline CAPS product line. Based upon Contractor's assessment of City's requirements, no additional software or hardware is required, other than that provided under this Agreement, for the CAPS system to perform pursuant to the specifications in this Exhibit "A" and the System Specification Document. Should additional software modules be required for the successful operation of the CAPS system at PSPD pursuant to the specifications in this Exhibit "A" and the System Specification Document, Contractor, at its sole cost and expense, shall provide City with such additional software modules as required for the successful operation of the CAPS system at PSPD. The prices were developed based upon Contractor's best understanding of City's dispatch and records automation requirements. Should requirements exist which are outside the scope of the specifications of this Exhibit "A" and the System Specifications Document, they may be purchased by the City at an additional cost, pursuant to Contractor's price schedule attached hereto as Appendix D. Maintenance support and the associated fees referenced above commence upon the cutover/acceptance of the CAPS system. The prices assume that Contractor shall provide the services herein pursuant to the Schedule of Performance set forth at Exhibit "C". The prices do not include the conversion of the existing CAD history files, nor do they include the conversion of the CAD and RMS code tables for use with the proposed systems. • Contractor is submitting this proposal in accordance with Contractor's Software License Agreement. The prices are based upon the following payment schedule which allows Contractor to invoice City upon completion of specific project milestones: Hardware/OEM 100% Upon manufacturer delivery to Contractor or the City, whichever occurs first. Software/Services 25% Upon execution of contract documents. 20% Upon successful installation of CAD at Client Site. 25% Upon successful installation of RMS at Client Site. 5% Upon successful installation of MCS at Client Site. 5% Upon successful installation of CARS at Client Site. 10% Upon completion of CAD and RMS training at Client Site 5% Upon Contractor certification of Ready for Production. -29- 629/014o8n-0008/3225425.1 a02/02/99 10% Upon City Acceptance. City Acceptance of the products and services of Contractor under this Agreement shall occur when the entire CAPS system has been in use for 30 days and functionally operates per this Exhibit "A" and the System Specification Document. Prior to the expiration of the acceptance period the City will develop a punch list to be addressed under the Contractor maintenance program. The price for these Services does not include provisions for system tailoring or customization. Should system modifications be required, they are available as an option at a price in addition to those stated above. The price for these Services assumes that City will retain responsibility for the installation of all client workstation-based software, terminals, printers and for all network installation and configuration activities, pursuant to training and instruction provided by Contractor. The prices stated above assumes that City will provide and install all cabling, with proper terminations, from the terminal, workstation and/or printer locations to the computer room. City will provide and install Catagory Five (5) Cable, which Contractor represents is fully usable and adaptable to the CAPS system. The Services price assumes that all data entry support and supervisory personnel for file/table, building will be provided by City, as set forth at Section 4.2 of the Agreement. The prices stated above assume that City will provide a project manager who will be the primary point of contact for all communications with Contractor pursuant to Section 4.2 of the Agreement. -30- 629/0140B4-0008/2225425 1 a02/02/99 APPENDIX A - HARDWARE COSTS Unit E;tende Client Unit Extended d List List Discoun Client Price Client Qty Description Price Price t Price 1 HP CAD Server Model D230, 256Mb $38,595 $38,595 15 $32,608 $32,6081' Memory, 12Gb SCSI Disks in Mirrored Array, 4mm DAT Tape Drive, 10/100Mbps Ethernet NIC, Console, HP-UX Operating System, C Compiler, Cobol Compiler 1 HP RMS Server Model D270/1, 256Mb $51 ,837 $51,837 15 $44,062 $44,062 Memory, 27Gb SCSI Disks. 4mm DAT Tape Drive, 10/100Mbps Ethernet NIC, Console, HP-UX Operating System, C Compiler, Cobol Compiler 4 Dual Display CAD Workstations $3,524 $14,096 0 $3,524 $14,096 2 Ethernet 10/100Mbps Hubs $1 ,145 $2,290 0 $1 ,145 $2,290 $106,818 $93,056 -32- 629/o1doeA-000e/3225A25.1 a02i0299 APPENDIX B - ESP Maintenance Program TIBURON, INC. AGREEMENT FOR EXTENDED SERVICE This Agreement entered into this day of by the City of Palm Springs hereinafter called "CLIENT" and Tiburon, Inc., having its office at 40 Gold Street, 2"d Floor, San Francisco, CA 94133, hereinafter called "TIBURON." Witnesseth WHEREAS, CLIENT has determined that it requires the categories of application software maintenance on the software systems which have been provided to CLIENT by TIBURON under a separate agreement and which are identified in Appendix C attached hereto and which are referred to hereinafter collectively as the "Program," and WHEREAS, CLIENT therefore requires the provision of professional and technical services and materials as specified in this Agreement, and WHEREAS, TIBURON is qualified to provide the services and materials required by CLIENT as specified in this Agreement. NOW THEREFORE, in consideration of the mutual covenants contained herein, CLIENT and TIBURON agree as follows: 1. Period of Performance The term under which TIBURON shall be obligated to perform under this Agreement shall be for the time period specified in Appendix C and shall continue for this time period or until this Agreement has otherwise been terminated as provided for herein. 2. Statement of Work With respect to the Program, TIBURON shall perform the following maintenance services: a) TIBURON shall retain a copy of the Program source code. b) If during the term of this Agreement, (1) CLIENT discovers defects in the Program such that the Program will not perform in accordance with the specifications as previously accepted by CLIENT; (2) CLIENT notifies TIBURON of such defects in writing; and (3) such defects are reproducible, then TIBURON shall provide timely corrections of such -33- 627/01d084-0008/3225425 1 .02,102/99 defects. c) If problems arise concerning the Program, TIBURON shall provide telephone assistance and support via remote dial-in. If remote support is available, but an on-site visit is required to correct the defect, TIBURON will travel to the site at no additional charge if the problem lies solely with TIBURON application software. If CLIENT is unable to provide remote dial-in and an on-site visit is necessary to correct the problem, Tiburon will bill for travel and per diem costs. If the problem is Caused solely by the CLIENT caused, the CLIENT is responsible for all reasonable fees and expenses and will be billed at TIBURON's current service rate in addition to all travel costs, as itemized in a bill provided by Tiburon to the Client. d) TIBURON shall provide CLIENT with a minimum of quarterly status reports to include a summary of site activity and client requests. e) TIBURON shall provide a. toll-free telephone service for routine operational and technical assistance. evvvvvvvvv mvv vvvnev nvvvevoevoomvavevvvvcvovay..vvxevvvvv voovvvvvv f) Technical and operational service shall be available during TIBURON's normal support hours of 6:30 a.m. to 5:30 p.m. Western Standard Time (excluding weekends and TIBURON holidays) and at additional times according to the terms defined in the Schedule of Services and Charges which is attached as Exhibit B and incorporated herein by reference. TIBURON shall provide software upgrades and enhancements as per the schedule and charges stated in Appendix C . Any installation and special tailoring required shall be charged at the Technical Service Rate as identified in Appendix C. All such software provided by TIBURON shall be covered by the terms of this Agreement. If CLIENT has source code on site, and corrections for reported problems or defects are due substantially to CLIENT's errors or CLIENT's changes to the system environment, or relate to CLIENT-modified portions of the Program or to portions of the Program affected by CLIENT-provided software, or if diagnosis of problems reported erroneously shall be performed by TIBURON, CLIENT will be charged at the Technical Service Rate, plus applicable travel and per diem expenses. Client Responsibilities CLIENT agrees to provide those services and facilities defined below which are necessary for the provision of services by TIBURON under this Agreement. -34- 627/014084-0008/3225425.1 a02/02/99 CLIENT and TIBURON agree that the scope and schedule of services to be provided by TIBURON under this Agreement depend upon the timely fulfillment of CLIENT responsibilities. a) CLIENT shall assign a coordinator to ensure that CLIENT's duties set forth in this Agreement are met, to coordinate appropriate schedules in connection with TIBURON's services hereunder, and to provide other coordination activities which are necessary for TIBURON to perform its services hereunder. CLIENT shall maintain performance logs documenting trouble calls and availability of on-line systems according to procedures provided by TIBURON. b) CLIENT shall assign individuals who are familiar with the Program and able to provide on-site technical assistance as required by TIBURON to assist TIBURON in performing its services hereunder. CLIENT personnel will screen operational assistance calls and handle operational problems where appropriate. c) If CLIENT has source code on site, any changes or modifications to TIBURON's application software or to the application software operating environment by CLIENT without TIBURON's written authorization is an unauthorized change and is in violation of the Software License Agreement. In the event CLIENT is deemed to be in violation of the terms and conditions of this Agreement, Tiburon reserves the right to terminate this Agreement and pursue any and all legal remedies. CLIENT may be subject to penalties, fines and associated legal fees if found to be in violation of the Software License Agreement. d) CLIENT shall ensure that appropriate maintenance activities are carried out on a regularly scheduled basis in accordance with site documentation. This includes but is not limited to backing up the data base and journal logs, purging out of date records and running reports and performing diagnostics as requested by TIBURON. e) CLIENT shall provide dial-in access to CLIENT's computer, making it accessible by TIBURON for remote service. CLIENT is responsible for the provision of all local equipment (dial-up modems, telephone termination, communications port, etc.) required to support access by TIBURON. If CLIENT has source code on site, CLIENT shall also compile programs and run appropriate tests following each remote access as requested by TIBURON. in the event that CLIENT does not comply with these provisions, Technical Service charges as specified in Appendix. C shall apply. f) CLIENT shall meet with TIBURON as may be reasonably required to discuss operational issues and the status of the Program and provide 35- 627/019094-0009/3225425.1 a02/02/99 timely responses to issues related to maintenance and Program performance raised in writing by TIBURON. g) CLIENT shall update and maintain the input data as may be required for satisfactory Program operation, and be responsible for the accuracy of CLIENT-provided data. h) If the CLIENT has the source code, CLIENT shall provide TIBURON with a complete copy of the production source code in a format compatible with TIBURON's support environment so that TIBURON has ready access to the code for maintenance work. Complete replacement copies shall be made available on a timely basis upon request by TIBURON. H the CLIENT has the source code, CLIENT shall be responsible for storing a complete copy of the production source code off site as an emergency back up. 4. Payment CLIENT shall make payments to TIBURON based on invoices submitted. Schedules and amounts of invoices shall be determined in accordance with Appendix C. 5. Independent Contractor Each party hereto, in performance of this Agreement, will be acting in its own capacity. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. TIBURON will be responsible for payment of payroll taxes, unemployment insurance, and similar obligations with respect to its own employees, and no deductions shall be made from payments due under this Agreement for that or any other related reason. 6. License With respect to each change, correction, or enhancement to Program furnished to CLIENT under this Agreement, TIBURON grants to CLIENT a perpetual, non- exclusive, non-assignable, non-transferable license to use such change, correction, or enhancement solely as part of the Program. 7. Client Modifications If CLIENT has source code on site, CLIENT modifications are prohibited unless prior review and approval by TIBURON has been granted for the specific changes and the person or entity making such changes. At no additional cost to the CLIENT, TIBURON shall provide updates to the -36- 627/014084-0008/3225425 1 a02/02/99 TIBURON External Interface Software and/or documentation, including all existing screen formats currently supported by TIBURON, for all legal requirements or modifications mandated by NCIC, or the CLIENT's respective State, when such requirements or modifications require a programming/source code change to the Licensed Software. Changes mandated or offered by CLIENT's respective City and/or County are not covered. Changes to State and/or NCIC protocols are considered outside the scope of this Agreement. 8. Confidential Information TIBURON shall regard all CLIENT files and data as CLIENT's confidential information. TIBURON shall not release said data to outside parties without written consent of CLIENT. To the extent allowed by law, CLIENT shall regard all software and documentation provided by TIBURON as confidential infor- mation. CLIENT shall not release or provide access to said software and documentation to outside parties without written consent of TIBURON. 9. Termination This Agreement may be terminated by either party by giving at least a ninety (90) day advance written notice to the other party. Upon termination of this Agreement for any reason, the provisions relating to Confidential Information and License shall survive. 10. Insurance TIBURON shall, at its own expense, at all times while TIBURON is performing services at CLIENT's facilities, maintain in force: a) a comprehensive general liability insurance policy including coverage for contractual liability for obligations assumed under the contract documents, blanket contractual liability, products and completed operations and owner's and contractor's protective insurance; and b) comprehensive automobile liability insurance policy including owned and non-owned automobiles. Liability coverage shall be equal to or greater than the limits for claims made under the California Tort Claims Act with minimum coverage of $500,000 per occurrence (combined single limit for bodily injury and property damage claims) or $500,000 per occurrence for bodily injury and $100,000 per occurrence for property damage. Liability coverage shall be provided on an "occurrence" basis. "Claims made" coverage will not be acceptable, Certificates of insurance acceptable to CLIENT shall be filed with CLIENT prior to the commencement of any services at CLIENT facilities by TIBURON, Each certificate -37- 627/014094-DOOB/3225425.1 a02;02/99 shall provide that coverage under the policy cannot be canceled and restrictive modifications cannot be made until at least 30 days prior written notice has been given to CLIENT. A certificate which states merely that the issuing company "will endeavor to mail" written notice is unacceptable. 11 . Amendments This Agreement may be amended upon mutual written agreement by CLIENT and TIBURON to include, but not be limited to, additional services and support and equipment and software replacements and upgrades. 12. Applicable Law This Agreement shall be construed in accordance with and governed by the laws of the State in which the CLIENT'S organization is primarily located. 13. Limitation of Liability and Remedies a) Limited Warranty While this Agreement is in effect, TIBURON warrants that all computer programs developed or provided under this Agreement will conform to such applicable specifications as may be developed under this Agreement. The above warranty is in lieu of all other warranties, express or implied, including any warranty of merchant ability or fitness for a particular purpose. b) Limitation of Damages and Remedy TIBURON's liability hereunder for damages shall not exceed the annual maintenance charge paid to TIBURON for the period in which the cause of action occurred. In no event shall TIBURON be responsible for any indirect, consequential, incidental, or tort damages. LICENSOR and CITY agree that damages may result to CITY as the result of LICENSOR's failure to meet the schedule in regard to the "Go-Live" performance requirement. In the event that CITY, in its reasonable and good faith discretion, determines that an unreasonable delay in meeting LICENSOR's "Go-Live" performance requirement has occurred which constitutes nonperformance of LICENSOR, CITY shall provide written notice to LICENSOR of its determination. LICENSOR shall, within twenty (20) business days of CITY's notice, either (i) cure such delay; (ii) provide a plan acceptable to CITY to cure the delay; or (iii) provide the CITY reasonable assurances that such delay shall not constitute nonperformance of the contract. If LICENSOR fails to cure such delay or provide a plan or reasonable assurances acceptable to CITY as provided above, -38- 625/014084-0008/3225425 1 .02/02/99 then, if such delay is due to the nonperformance of LICENSOR and is not due to the actions or omission of the CITY or events beyond the control of LICENSOR, LICENSOR agrees that it is and will be impractical to determine the actual amount of damages resulting from such delay, and LICENSOR will in such instance pay to CITY liquidated damages in the sum of one hundred dollars ($100) per day for each business day of delay in providing services in accordance with the Contract Documents, commencing upon the expiration of the twenty (20) business day period; provided, however that the total period of all liquidated damages paid to the CITY under the terms of the Contract shall not exceed one hundred and eighty days (180) or eighteen thousand dollars ($18,000). 627/0140ea-0008i3225425 1 =02i02i99 14. Entire Agreement This Agreement sets forth the entire understanding between the parties as to the subject matter hereof and merges all prior discussions between them, and neither party shall be bound by any prior representations, conditions, understandings, or warranties except for original system warranties or those expressly provided herein, or in any surviving terms of prior written agreements between the parties hereto, or in any written agreements signed by representatives of the parties on or subsequent to the date of this Agreement. No provision appearing on any form originated by CLIENT shall have any force or effect unless such provision is expressly accepted in writing and signed by a representative of TIBURON. IN WITNESS WHEREOF, the parties have hereunto set their hands on the dates set forth below. CLIENT TIBUR©'N: ' Signature of Authorized Representative Name (type or print) Name (type or print) Title Title Date Date -40- 62i/014084-0008/3225425 1 .02/02/99 APPENDIX C - SOFTWARE SUPPORT AND MAINTENANCE FEE CLIENT NAME: City of Palm Springs CONTACT: Jim Runge Support and Maintenance provided to the CLIENT listed above shall be pursuant to the terms and conditions of the TIBURON Agreement for Extended Service dated This Exhibit A shall become part of said Agreement upon signature and shall be effective to and applies only to the application software and software modules listed below and will be billed in advance annually, unless otherwise set forth in Exhibit B. Upon future renewals, there will be an additional charge to those CLIENT's requiring semi-annual or quarterly invoices. FROM THE EXHIBIT "C" Software Module Months CPU Make Model Serial # User Total License Fees IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives. Tiburon, Inc. Client By: By: Craig Nelson (Authorized Signature) Vice President Business Development Division Name: Title: Date: Date: 41- 627/014084-0008/3225925.1 a02/02:99 APPENDIX D - SCHEDULE OF SERVICES AND CHARGES Basic Services $ per year TIBURON will provide basic services as defined in the Statement of Work contained in the Section 2 of the Extended Service Agreement for the software systems as defined in Exhibit A. Support for Computer Aided Dispatch, Message Switch and Jail Management Systems is 24 hours per day, 7 days per week. Support for other products is from 6:00 a.m. to 5:30 p.m. Pacific Time, excluding weekends and normal TIBURON holidays, unless the "24/7" Service Option is selected. In all cases, call-out charges will apply as described below. "24/7" Service Option $ per year Products not normally covered by 24-hour support may optionally be supported with 24-hour coverage (including TIBURON holidays). Applicable call-out charges continue to apply. If this option is not in force, technical support requests outside of covered hours are charged at technical service rates as defined below. Prepaid Technical Support Resource Pool $ per year A dollar amount is allocated to a Technical Support Resource Pool. The charges for Technical Support will always be calculated at the TIBURON facility rate and will be subtracted from this dollar amount as incurred. Any unused portion of this account is carried over to the next contract year. Gold Card Service Option $ per year A total support program is tailored for CLIENT and includes a schedule of on-site visits by TIBURON personnel for data base management, working with end users to identify and resolve problems and to apply agreed upon software changes, installation of new software products obtained through this Agreement, and a comprehensive training program. (If selected by CLIENT the terms of this option are defined in the Gold Card Service Schedule will be attached as Exhibit C and incorporated herein by reference.) Operations Review included Tiburon personnel will visit the client site periodically and meet with management, _4;_ 627/014084-0008/3225425.1 =_02/02/99 operations and other user personnel to conduct an operations review of the systems and an analysis of the CLIENT's automation requirements. A report will be produced to include observations and recommendations as regards the use of the system. Working with the CLIENT, this review will be further documented in the form of a multi-year automation plan for the CLIENT. There will be no charge for this service if total annual maintenance exceeds $ Tiburon User Group Membership included Two voting memberships in the Tiburon User Group are included in Basic Services. Up to three additional voting memberships may be purchased for $ each. Technical Service Rates Technical Services Rates shall be deducted from the Prepaid Technical Support Resource Pool, or if that option is not available, they shall be invoiced to CLIENT as incurred. 1 . Technical Service Rates Technical support shall be charged at the following rates: At TIBURON Facilities: $ per staff hour At CLIENT Site: $ per staff hour A minimum of four (4) hours per occurrence will be charged for work conducted at TIBURON facilities and a minimum of eight (8) hours at CLIENT site for Technical Services not covered under Basic Services or "24/7" Service Option as described previously. 2. Materials, Travel and Per Diem Expenses When applicable, all special materials, plus travel and per diem expenses shall be charged to CLIENT at cost. 3. Call-Out Charges For systems not covered under 24/7 support, after normal business hours, call-outs will be billed at $ per call. After the first hour, the rate if $ per hour with a two-hour minimum. If CLIENT'S systems are covered under the 24/7 support, the off-hour call-out fee is only 4. Remote Access All charges in this Agreement are predicated on CLIENT providing the required -44- 625/014084-0008/3225425 1 a02/02/99 hardware, software, and operating environment for dial-in service. If CLIENT does not provide this support for dial-in service, the following additional charge will apply: $ per month per system supported In addition, travel and per diem expenses for on-site support required due to lack of remote access will be charged as defined in Item 1 , page 3, Exhibit B. Payment Provisions Payments due under this Agreement shall be made based on invoices submitted in advance on an annual basis for Basic Services and Options or as incurred for miscellaneous expenses. Charges provided for in this section may be altered by TIBURON annually on the anniversary date of the Agreement by giving a 90-day advance written notice of such changes. The amount of any tax, license, or permit fees, but not including taxes on income, that may be imposed or levied upon this Agreement, the transaction, or the materials or services delivered hereto, shall be added to each invoice and paid by CLIENT in addition to the amounts shown above. CLIENT shall pay each invoice within 45 days of receipt thereof. IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives. Tiburon, Inc. Client Authorized Signature Authorized Signature Name Name Title Title Date Date -45- 627/014004-0008/3225425 1 a02/02/99 City of Palm Springs Contract Amendment No. 01 To Contract Services Agreement for Computer Assisted Public Safety System This Contract Amendment No. 01 presents all contractual changes applicable to delivery of an NTTM-based versus a UNIXTM-based Computer Aided Dispatch Direct Delivery Product ("CAPS") system to the City of Palm Springs. With the change from UNIX to NT, the City of Palm Springs (the "City") acknowledges this as a BETA Site implementation of the NT-based CAPS as anticipated by, and described in, the Confidential Disclosure Agreement("CDA") executed between the City and Tiburon on March 2, 1999. By reference, that CDA is incorporated herein in its entirety, and it is presented as Attachment I hereto. This Contract Amendment No. 01 also reflects certain administrative changes. hi accordance with the Clause 9.3 titled, "Integration; Amendment', the Contract is hereby amended as follows: 1. Clause 1.1 title "Scope of Services"is amended by the deletion of the first sentence and its replacement with the following: "In compliance with all terns and conditions of this Agreement, the Contractor shall provide those services specified in the"Initial Statement of Work, NT CAD and RMS (Beta Product)"that is presented as Attachment 4 to Contract Amendment No. 01 of this Agreement. Additional definition of the services to be provided hereunder is presented in the"Scope of Services" attached hereto as Exhibit"A". As pertains to both those documents and as referred to herein, such services may be referred to as "services" or "work" hereunder." 2. Clause 1.9, titled "Special Requirements", is hereby deleted in its entirety. 3. Clause 2,1, titled"Contract Sum", is amended to reflect the correct contract value. The first sentence of that clause is deleted and replaced with the following: "For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the"Schedule of Compensation", attached hereto as Exhibit"C" and incorporated herein by reference, but not exceeding the maximum contract amount of FIVE HUNDRED EIGHTY SIX THOUSAND EIGHTEEN DOLLARS AND NO CENTS ($586,018.00)(herein"Contract Sum", except as provided in Section 1.8)." 4. Clause 3.2, titled "Schedule of Performance", is amended by the deletion of the existing second sentence, which is replaced with: "When requested by the Contractor, extensions to the tune period(s) specified in the Schedule of Performance (Exhibit D)may be approved in writing by the Contract Officer,but not beyond December 8, 1999." 5. Clause 7.7,titled "Liquidated Damages", is hereby amended by deleting the existing fourth line and replacing it with the following: `...pay to pursuant to the terns of the third paragraph of paragraphs 13 (b) of the Agreement for Extended Services executed by...". Page 1 of 5 6. A new Clause 10 titled "Order of Precedence" is added to read as follows: Any inconsistency in this Agreement shall be resolved by giving precedence in the following order: • The Agreement and its Clauses 1-11, and may be amended in accordance with Clause 9.3 • City of Palm Springs, Initial Statement of Work,NT CAD and RMS (Beta Product), dated 4/1699 (Attachment 4 to Contract Amendment No. 01) • The Scope of Services (Exhibit A) • The Pricing Assumptions (at Pages 29-30 of the Agreement) 7. A new Clause 11, titled "Warranty", is added to read as follows: "Tiburon shall provide warranty services for Tiburon licensed Application Software according to the terms and conditions of the Agreement for Extended Service set forth in Appendix B and incorporated herein by reference. During the warranty period, Tiburon warrants that the Tiburon Licensed Application Software as provided under this Agreement will conform to the specifications in the Scope of Services (Exhibit"A") and as will be described in the NT CAD product documentation that will be delivered to the City by Contractor on or before the start of Training. The warranty period for Tiburon Licensed Application Software is 180 calendar days following the system being placed in production status. Warranty support shall be provided in accordance with the ESP Maintenance Program(Appendix B), and shall not require any additional compensation or payment by the City other than the call-out fees as described in the Schedule of Services and Charges (Appendix D). Following the warranty period, additional support and maintenance per the terms set forth in Appendix B shall be available to the City at the rates set forth in the Software Support and Maintenance Fee-Appendix C." 7. Signature Page (Page 14) of the Agreement: Tiburon, Inc. is a Vir ' ria corporation. 8. Scope of Services (Exhibit A), Section 2.1: Delete the fast sentence and replace with the following: "Whether implemented within the CAPS environment with RMS/DDP or as a stand- alone dispatch system, Contractor's CAD/DDP will provide an effective solution to the challenges facing today's emergency communications environment." 9. Schedule of Performance (Exhibit D) is modified by deleting the existing text and replacing it with the following: "The prices assume that all the City of Palm Springs supplied services and facilities will be provided according to an agreed to schedule which ensures that Tiburon is able to supply all services in accordance with the following schedule: Page 2 of 5 Contract Amendment No. 01 Contract Services Agreement for Computer Assisted Public Safety System Milestone/Event Due Date System Review—NT CAD Phase 1 May 17, 1999 On Site Installation June 1, 1999 NT Server Data Entry Workstations Train on Data Entry Palm Springs Data Entry June 7, 1999 NT CAD Installation On Site July 12, 1999 Installation of other applications August 16, 1999 NT RMS NT MSS Interfaces CARS Training—CAD/RMS/Interfaces September 13, 1999 Go Live—Cut Over to Production October 11, 1999 System Acceptance November 10, 1999 10. Pricing Assumptions (Pages 29-30): The first bulletized paragraph is deleted in its entirety, and replaced by the following: "Contractor shall install baseline CAPS product line. Based upon Contractor's assessment of City's requirements, no additional software or hardware is required, other than that provided under this Agreement, for the CAPS system to perform pursuant to the specifications described in the Scope of Services (Exhibit"A") and as will be described in the NT CAD product documentation that will be delivered to the City by Contractor on or before the start of Training. Should additional software modules be required for the successful operation of the CAPS system at PSPD pursuant to those specifications, Contractor, at its sole cost and expense, shall provide City with such additional software modules as required for the successful operation of the CAPS system at PSPD". The second bulletized paragraph is deleted in its entirety, and replaced by the following: "The prices were developed based upon Contractor's best understanding of City's dispatch and records automation requirements. Should requirements exist which are outside the scope of the System specifications described in the Scope of Services (Exhibit "A") and as will be described in the NT CAD product documentation that will be delivered to the City by Contractor, they may be purchased by the City at additional cost, pursuant to Contractor's price schedule, attached to this Agreement as Appendix "D". At the end of the fourth bulletized paragraph, "...Exhibit"C....," is deleted and replaced by "...Exhibit"D.....". The paragraph immediately following the sixth bulletized paragraph is deleted and replaced with the following: "The prices are based upon the following payment schedule which allows Contractor to invoice City upon completion of specific project milestones: Page 3 of 5 Contract Amendment No. 01 Contract Services Agreement for Computer Assisted Public Safety System Hardware/OEM $93,056- Upon manufacturer delivery to Contractor or the City, whichever comes first Software/Services $123,240 Upon execution of contract documents $98,592 Upon successful installation of CAD at Client Site $123,240 Upon successful installation of RMS at Client Site - $24,648 Upon successful installation of MCS at Client Site $24,648 Upon successful installation of CARS at Client Site $49,298 Upon completion of CAD and RMS training at Client Site .-,$24,648 Upon Contractor certification of Ready for Production $24,648 Upon City Acceptance" The third line of the first sentence of the paragraph that begins "City Acceptance...", is deleted and replaced by: "...functionally operates pursuant to the specifications described in the Scope of Services (Exhibit"A") and as will be described in the NT CAD product documentation that will be delivered to the City by Contractor on or before the start of Training." The bulletized note that appears at the top of Page 28 of the Agreement is hereby modified with the addition of the three(3) sentences that are shown below. An additional paragraph is also added to that section regarding licensing for third-party software, and that additional paragraph is also presented below. "As part of its performance under this Agreement, Contractor will provide to the City certain software developed by Contractor. That software shall be provided in operating form. The City accepts Contractor's software under the terms and conditions of the Contractor's Software License Agreement, included herein as Appendix "E", incorporated herein by reference." "Certain third-party software programs, such as server and workstation operating system software,require that City execute a separate software license agreement. Any applicable license agreements shall be duly executed by the City." 11. Appendix B —ESP Maintenance Program: Section 2(f) is modified at the sceond/third lines with the replacement of"...Western Standard Time..."with "...Pacific Time...". 12. Contractor's Software License Agreement is added as Appendix "E", and is presented as Attachment 2 to this Contract Amendment No. 01. 13. The following statements/paragraphs are added render the bulletized notes that appear at the top of Page 28 of the Agreement: "Once the Systems provided hereunder have been placed into production status, Source Code for the licensed Tiburon application programs delivered to the City as a part of those systems will be deposited into an escrow account, and the City will be added to that escrow account as a beneficiary. The City will remain a beneficiary of that escrow Page 4 of 5 Contract Amendment No. 01 Contract Services Agreement for Computer Assisted Public Safety System account as long as the delivered systems remain under warranty or under the coverage of Tiburon's Agreement for Extended Services. A copy of the escrow agreement, with the City listed as a beneficiary thereto, will be delivered to the City immediately following the placement of the delivered systems into production status. A representative copy of the SAFE Escrow Agreement anticipated by this provision is included as Attachment 3 to Contract Amendment No. 01 to this Agreement, and is incorporated herein by reference." "TIBURON shall provide the Oracle data base and any other applicable third-party licenses in the quantities requested by the CLIENT for operation of the systems being installed as part of this Agreement. As part of the deliverables of this Agreement, TIBURON will integrate that licensed software into the hardware and software systems to be delivered and certified. If for any reason it is determined that insufficient licenses have been purchased, or that for any reason more licenses are required for system operation, the CLIENT is responsible for any additional costs associated with obtaining those additional licenses, and the costs associated with applicable integration fees." All other terms, conditions and provisions of the original Agreement, as amended, remain unchanged, except as specifically noted herein. CONTRACTOR ACKNPWLEDGEMENT: CITY ACKNOWLEDGEMENT Z, � a Sig�nak{ue ignature Printed N/a�me Printed Name (���ss ��-���«���� �` ,ire/�c�°r©� d�"��?l��.cre�rt✓,To�° Cr Title Title p Data Signed' Date Signed Page 5 of 5 Contract Amendment No. 01 Contract Services Agreement for Computer Assisted Public Safety System City of Palm Springs Contract Amendment No. 01 To Contract Services Agreement for Computer Assisted Public Safety System Attachment 2—Software License Agreement TIBURON, INC. SOFTWARE LICENSE AGREEMENT Name and Address of CLIENT: The City of Palm Springs 200 South Civic Drive Palm Springs, California 92262 Identification of Program(s): NT CAD CAD Activity Reporting System (CARS) NT RIMS Automated Activity Reporting (ARS) Mobile Computing Solution (MCS) with Automated Field Reporting (A Tiburon, Inc., a Virginia corporation having its office at 39350 Civic Center Drive, Suite 280, Fremont, California, doing business as and hereinafter called "TIBURON", and the client whose name and address are written above (CLIENT), agree that the following terms and conditions will apply to the software programs identified above (Program), including the operating version of the software and program documentation. 1. LICENSE. TIBURON agrees to grant CLIENT a non-exclusive license to use the Program subject to the terms and conditions of this license agreement. 2. BACK-UP POLICY. CLIENT may make two back-up copies of the Programs for CLIENT's own use and security. No additional back-up copies are authorized except to remedy media failure. In no event may copies be transferred to a third party. 3. RESTRICTIONS ON USE AND TRANSFER. The original and backup copies of the Program are to be used on one computer only at any one time. CLIENT may not distribute the Program or any part of the materials relating thereto to a third party. CLIENT may not distribute the Program over a network. CLIENT may not transfer this license. These restrictions apply to all derivative products of the Program, regardless of whether modifications were made by TIBURON, CLIENT, or a third party. 4. NO EXPRESS OR IMPLIED WARRANTIES FOR THE PROGRAM, INCLUDING THE WARRANTIES OF MERCHANTABILITYAND FITNESS FOR A PARTICULAR PURPOSE, ARE CREATED BY THIS LICENSE AGREEMENT. ANY SUCH WARRANTIES ARE LIMITED TO THOSE WHICH MAY BE EXPRESSLY STATED IN SEPARATE AGREEMENTS BETWEEN CLIENT AND TIBURON, 5. LIMITATION OF LIABILITY. NEITHER TIBURON NOR ANY PERSON CONNECTED WITH TIBURON SHALL BE LIABLE FOR ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED BENEFITS OR PROFITS, RESULTING FROM THE OPERATION OR FAILURE TO OPERATE OF THE PROGRAM. 6. TERM. This license is effective until terminated. It will be terminated if CLIENT fails to comply with any term or condition of this License Agreement. CLIENT may terminate this agreement at any time. In the event of termination CLIENT agrees to destroy the Program together with all copies and related material. 7. MAINTENANCE MODIFICATIONS. TIBURON will provide Maintenance Modifications to the software licensed for a period of 180 days after acceptance of said software, or for such further period as may be specified in a written agreement between TIBURON and CLIENT. At the conclusion of that period, TIBURON is willing to provide continuing services for an additional charge. "Maintenance Modifications" shall mean modifications or revisions which correct errors in the licensed software and documentation, support new releases of operating software and other updates which are not Enhancements. "Enhancements" shall mean changes or additions (other than Maintenance Modifications) made by TIBURON to the licensed program which add significant new functions or substantially improve performance of the licensed software by changes in system design and/or coding, and related documentation. Page 1 of 2 IN WITNESS WHEREOF, the parties have hereunto set their hands on the dates set forth below. CLIENT: Tiburon,Ac.: 21Co gnature of Authorized Repr sentative Sig tre of Authorized Representative Name Name G�'lAEC�f��'��,V` r✓7�U�e/%{JifL� ��S' h 1'.:,P„S-s,�'> E�d��.?o G'r��Irs,P' Title / Title Date Date Page 2 of 2 City of Palm Springs Contract Amendment No. 01 To Contract Services Agreement for Computer Assisted Public Safety System Attachment 3—SAFE Escrow Agreement(Sample Format) SAFE ESCROW AGREEMENT Account Number This Agreement is of cctivc , 19 , _ between Data Securities International, Inc. ("DSI") and Tiburon, Inc. ("Depositor"), who collectively may be referred to in this Agreement as "the parties" and who are more fully identified in the F:thibit A. A. Depositor desires to establish an escrow with DST to provide for the retention, administration and controlled access of the proprietary technology materials of Depositor. R. Depositor desires to avoid disclosure of its proprietary technology except under certain limited circumstances. ARTICLE. i -- ➢EPOSiTS 1 .1 Obligation to Make Deposit. Upon the signing of this Agreement, Depositor shall deliver to DSI the proprietary information and other materials ("deposit materials") to be deposited under this Agreement. 1.2 Identification of Tangible Media. Prior to the delivery of the deposit materials to DST, Depositor shall conspicuously label for identification each document, magnetic tape, disk, or other tangible mcdia upon which the deposit materials are written or stored. Additionally, Depositor shall complete Exhibit B to this Agreement by listing each such tangible media by the item label descriptiun, the type of media and the quantity The Exhibit B must be signed by Depositor and delivered to DSI with the deposit materials. Unless and until Dcpositormakes the initial deposit with DSI, DS1 shall have no obligation with respect to this Agreement, except the Obligation to notify Depositor regurding the status of the deposit account as required in Section 3.2 belov,'. 13 1)epnsit Tnsnection. When DSI receives the deposit materials and the Exhibit B, DST will conduct a deposit inspection by visually urttchiug the lobcling of the tangible media containing the deposit materials to the item descriptions and quantity listed on the Exhibit B. 1.4 Acecotanec of Deposit. At completion of the deposit inspection, if DSI determines that the labeling of the tangible media matches the item descriptions and quantity on Exhibit B; DSI will date and sign the Exhibit B and mail a copy thereof to Depositor. if"DST determines that the labeling does not match the item descriptions or quantity on the Exhibit B, DSI will (a) note the discrepancies in writing on the Lxhibit 13; (b) date and sign the .Exhibit 13 with tite exceptions noted; and (c) provide a copy of the Exhibit B to Depositor. DSI's acceptance of the deposit occurs tgion the signing of the Exhibit B by DSi. 1.5 Denositnr's Representations. Depositor represents as follows: ❑. 1)epnsit0r lawfully possesses all of the deposit materials deposited with DSI; O 198J. I�196 DSI - S96v2 r,c� , b. With respect to all of the deposit materials, Depositor has the right and authority to grant to DST the rights as provided in this Agreement; and C. The deposit materials are not subject to any lien or other encumbrmtce. 1.6 Deposit Undatcs. Updates to the deposit materials will be added to the existing deposit. All deposit updates shall be listed on a new F,xhibit B and the new Exhibit B shall be signed by Depositor. F.ach Exhibit B will be held and maintained separately within the escrow account. An independent record will be created which will document the activity for each Exhibit A. Tile processing of all deposit updates shall be in accordance with Sections 1.2 through 1.5 above. All references in this Agreement to the deposit materials shall include the initial deposit materials and any updates. 1.7 Removal of Deposit Materials. The deposit materials may be removed andlor exchanged only on written instructions signed by Depositor or as otherwise provided in this Agreement. ARTICLE 2 -- SAFE BENEFICIARY ENROLLMENT S 2.1 SAFE Bencliciary Enrollments. After DST's acceptance of the deposit materials, Depositor may enroll one or more beneficiaries to this technology escrow account. Depositor wilt execute and suhmit to DST a- SAFF Beneficiary 12nrolltnent document, Exhibit C, l*sting each heneliciary to be enrolled as a SAFF. Beneficiary under the !agreement. Upon DST's acceptance of-an Lxhibit t;, DST will issue an enrollment letter to the SAFE- 13cncficiary. 2.2 Other Third Parties. DST shall have no obligation to any other third party except SAFE Beneficiary accepted by DSI. DS1 and Depositor shall have the right to- modify or cancel the Agreement without the consent ofany third party. ARTICLL:3 --CONFIDENTIALITY ANY) s"2A;4;ORD KEiEPnIG 11 Confidentiality. DST shall maintain the deposit materials in a secure, envimttntcntally safe, locked facility which is accessible only to authorized representatives of DSL DS1 shall have the obligation to reasonably protect the confidentiality of the deposit materials. Fxcept as provided in this Agreement. DST shall not disclose the content of this Agreement to any third party and shall not disclose, transfer, make available, or use the deposit materials. If DST receives a subpoena or other order of a court or other judicial tribunal pertaining to the disclosure or release of the deposit materials, DST will immediately notify Depositor. A shall be the responsibility of Depositor to challenge any such order; provided, however, that ➢SI does not vvaive its rights to present its position with respect to any such order. DS1 will not be required to disobey any court or other judicial tribunal order (See Section 9_5 below for notices of requested order.) 3.2 Status Reports. J)SI will issue to Depositor a report profiling the account history at least serni-anmially DST may provide topics of the account hisuary upon request. PIV 2 S96v2 . 3.3 Audit Rights, During the term of this Agreement, Depositor shall have the right to inspect the written records of DSI pertaining to this Agreement. Any inspection shall be held during normal business hours and Billowing reasonable prior notice. ARrICI-E 4 -- GRANT k_1F tUGHTS TO DSI 4.1 Title to Media. Depositor hereby transfers to DSI the title to the media upon which the proprietary infomation and materials are written or stored. However, this transfer does not include the ownership of the proprietary information and materials contained on the media such as any copyright, trade secret,patent or other intellectual property rights. 4.2 Riz;ht to Make Copies. DSI shall have the rig}rr to tualce copies of the deposit materials as reasonably necessary to perform this Agreement. DSI shall copy all copyright, nondisclosure, and other proprietary notices and titles contained on the deposit materials onto any copies made by DSI. With all deposit materials submitted to DSI, Depositor shall provide any and all instructions as may be necessary to duplicate the deposit material including but not limited to the hardware and/or software needed. ARTICLE 5 --RLI,FAS E OF DEPOSIT T Release of Deposit Coov to a SAFE Benedciarv. Upon receipt by DSI of written instruction directly from Depositor, Depositor's trustee in bankruptcy, or a court of competent jurisdiction, and payment to DSI of the deposit copying and deliver,/ fe , DSI will release a copy of the deposit materials to the SAFE Bencitciary identified in the instruction. ARl ICI..E 6 --.TERM AND TERMINATION ION 6.1 Terni of Agreement. 'lhe initial term of this Agreement is for a period of one year, Thercaltcr, this Agreement shall automatically rcI)c%v from year-try-year unless (a) Depositor instructs D51 in writing that the Agreement is terminated; or(b) the Agreement is terminated by DST Ibr nonpayrnciu in accordance with Section 6.3. If the deposit materials are subject to another escrow agreement with DSi, DSI reserves tic right, after the initial one year term, to adjust the anniversary date of this Agreement to match the then prevailing anniversary date of such other escrow arrangements. 6.2 Term of SAFE Beneficiary. Upon receipt by DSI of Depositor's executed Exhibit C„the SAFE DencEciary will be enrolled for an initial term of one ('1) year, unless Depositorinstructs DSI to terminate the SAFE Beneficiary earlier. Subsequent enrollment terms shall renew from year-to-year unless (a) Depositor instructs DSI in writing to terminate the SAFE Bcnc iciary, or (b) the enrollment is terminated by DSi for nonpayment in accordance with Section 6.3. 6.3 Termination for Nonnavtnent. In the event of the nonpayment of fees owed to DSI, DSI shall provide written notice of delinquency to Depositor. if the Last due payment is not received in ruff by DSI within one month o[ the date of such notice, then DSl shall have the Paec 3 S96v2 F right to terminate this Agreementt at any time Thereafter by Sending written notice of termination to all parties. DST shall have no obligation to take any action under this Agreement so long as any payment duc Lo DSI remains unpaid. 6,4 Disposition of Deposit Materials Upon Termination. Upon termination of this Agreement by instruction of Depositor, DSI shall destroy, return, or otherwise deliver the deposit materials in accordance with such instructions. Upon termination for nonpayment, DSI may, at its sole discretion, destroy the deposit materials or return them to Depositor. DST shall have no obligation to return or destroy the deposit materials if the deposit materials are subject to another escrow agreement with DSI. 6 5 Survival of Germs following Termination. Upon termination of this Agreement, the following provisions of this Agreement shall survive: a. Depositors Representations (Section 1.5); b. The obligations of confidentiality with respect to the deposit materials; C. 1lie obligation to pay DSI any fees and expenses due; d. The provisions of Particle g; and C. Any provisions in this Agreement which specifically state they survive the ictnination or expiration of this Agreement. ARTT('I.1 7 -- ,DSI°S FEES 7.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses applicable to the services provided. DSI shall notify Depositor at feast 90 days prior to any increase in fees. For any service nor listed oil T)SI's standard fee schedule, 1)5i will provide a.quote prior to rendering the service,if requested. 7.7 Payment Terms, DSI shall not be required to perlbmi any service unless the payment for such servicee and any outstanding balances owed to DSI are paid in full. All other fees are due upon receipt of invoice. If invoiced Cees are not paid. DST may terminate this Agreement in accordance with Section 6.3. fate fees on past due. amounts shall accrue at the rate of one and one-half percent per month (18% per annum) from the date of the invoice, A.R'FICLF. 9 -- LiABMITYAINDDISPUTES 8.1 Right to Rcly,on Instructions. DSI may acr in reliance upon any instruction, instrument„ or signatnrc rcasonahly balicved by DSI to be genuine DST may assume that any employee of Depositor who gives any written notice, request, or instruction has the authority to do so. DSI shall not be responsible for failure to act as a result ofcauses beyond the reasonable control of DSI. Page --- - -- . s96vz 8.2 indemnificaiicn. DSI shall be raspon-giblc to perform its obligations under this Agreement and to act in a reasonable and prudent mariner with regard to this escrow arrangernernt. Provided DS1 has acted in the manner stated in the prcteding sentent.., Depositor agrees to indemnify, defend and hold harmless 13S1 from any and all claims, anions, damages, arbitration fees and cxperian, casts-,attorney's fees and other liabilities incurred by DSI rclatirig hi any way to this escrow arrangement_ 8.0 Dispute Rcsulution. Any dispute relating to or arising from this Agreement shall be resolved by arbitration under the Commercial Rules of the American Arbitration Association. Unless otherwise agreed by Depositor, arbitration will take place in San Diego, California, U.S.A. Any court having jurisdiction over the matter may cnterjudgment on the award of the arbitritor(s). Service of a petition w confirm the arbitration award may be made by First Class mail or by commercial express mail, to the attorney for the party or, if unrepresented, to the party at the last known business address. 8.4 Controllinp.1-aw. This Agreement is to be governed and construed in accordance with the laws of the State of California,without regard to its conflict of law provisions_ 8.5 Notice of Requested Order_ if any party intends to obtairi an order from the arbitrator or any court of competent jurisdiction which may direct DSI to take, or refrain from taking any action_that party shall• a. Chive DSI at least two business days' prior notice of the hearing; b. Include in any such order that, as a precondition to DSI's obligation, Ds! be paid in full for any past due fees and be paid for the-reasonabie value of the services- to be rendered pursuant to such order; and C. Ensure that DST not be required to deliver the original (as opposed to a copy) of the deposit materials if D..91 may need to retain the original in its possession to fulfill any of its other duties AitTICI.L- 9 -- t;ENERA? PROVISIOM5 9.1 _ Fmire Agreement. This Agreement, which includes the Exhibits described herein, embodies the entire understanding between the parties with respect to its subject matter and supersedes all previous communications, representations or understandings, either oral or written. No amendment or modification of this Agreement shall be valid or binding unless signed by both purticb hereto, except the Exhibit A need not be signed by either party. 9.2 Nntices. All notices, invoices. payments, deposits and other documents and communications shall be given to the parties at the addresses specified in the attached Exhibit A. lr shall he the responsibility of the parties to 11otily each otlicr as provided in this Section in the event of a change of address. The parties shall have the right to rely on the last known address of the other parties. Unless otherwise provided in this Agreement, all documents and communications may be delivered by First Class mail. 93 Severabilit . rn the event any provision of this Agreement is found to be invalid, voidable or unenforceable, the parties agree that unlcss it materially affects the entire intent and purpose or this Agreement, such invalidity,voidability or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions heroin, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision. 9A Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties. However, DSI shall have no obligation in performing this Agreement to recognize any successor or assign of Depositor unless DSI receives clear, authoritative and conclusive written evidence of the change of parties. Tiburon, Inc. Data Securities International, Inc. Depositor y: By at��/1il yl �Yf�9r� _ Name: Name: �_ ••,, Title: Title: Date: Date -- S?6v2 ?' ,- rvvar-ac-�7 li ..sc r, GB EXHIBIT A DESIGNATED C0114TAGT Account Number ' Notices, deposit material returns and communications to Depositor should Invoices to Depositor should be be addressed to: addressed to: Company Name: Tiburon, Inc. Tiburon, Inc. Address: 39350 Civic Center Drive, Suite 100 39350 Civic Center Dnve_ , Suite 280 Fremont, CA 94538 Fremont, CA 94538 Designated Contact:_ ' _ Contact: Telephone: 0- d55 Requests front Depositor to change the designated contact should be given in writing by the designated contact or an authorized employee. Contracts,deposit materials and notices to invoice inquiries and fee remittances DSs should be addressed to: to DST should be addressed to: DSI DSI Contract Administration Accounts Receivable Suite 200 Suite 14.50 9555 Chesapeake Drivc 425 Caiifomin Sueet San Diego, CA 92123 San Francisco, CA 94104 Telephone: (619) b94-1900 (415) 398-7900 Facsimile: (6J9) 694-1919 (415) 398-7914 Date-' October 7, 1996 Page 7 S96YZ -- — - E%& IT C -= SAFE BENEFICIARY ENROLLMENT T — Account Number Pursuant to the SAFE Escrow Agreement C Agreemcnt'�, Depositor hereby enrolls the following as a SAFE Beneficiary: _ 1. Company Narr Address: I Contact: Telephone: 2. Company Naml l Address: I Contact- Telephone: 3. Company Mama Add.-ess: r' I =- Contact: Telephone:_ t4_ Company Namc,l Address,- Contact: Telephoner 5. Company Name Address: Conta(= Tcicphonc-_ 6. Company dame: Address: r Contact: Telephone: Page 9-18IP i x` City of Palm Springs Contract Amendment No. 01 To Contract Services Agreement for Computer Assisted Public Safety System Attachment 4—Initial Statement of Work NT CAD and RMS (Beta Product) City of Palm Springs Initial Statement of Work NT CAD and RMS (Beta Product) Project Tasks: Task 1: Project Initiation Session Objective: Assign project manager to establish project plans and procedures, deliver initial baseline documentation and software tapes and plan and complete project initiation meeting. Task Description: The project will be initiated at contract execution. A Project Initiation Session of all key City and Tiburon project personnel will occur within 60 days thereafter. The objectives of this first meeting are: To introduce all project participants; Review roles of key participants; Establish a clear chain of communication and authority; Review overall project scope and objectives; Review the overall plan of action and expected results; Identify overall project constraints and priorities; Review overall project schedule; Review NT System Review process; Review NT System Acceptance Test procedures (to be developed during project); Review resource and scheduling requirements. Responsibilities: Tiburon shall: a. Designate a Project Manager who will direct Tiburon's efforts and serve as the primary point of contact for the City. The responsibilities of the Tiburon project manager include: - Maintain project communications with the City's Project Manager. - Manage the efforts of Tiburon staff and coordinate Tiburon activities with the City's project team members. - Assist the City's Project Manager in developing a detailed project plan defining the detailed tasks and a schedule of Tiburon responsibilities. - Review the project plan with the City's Project Manager. - Measure and evaluate progress against the project plan. - Resolve deviations from the project plan that are within Tiburon's control. - Monitor the project to insure that support resources are available as scheduled. - Coordinate and oversee the installation of all applications, hardware and software, and all Tiburon supplied third party hardware, software and services. Page 1 of 16 NT SOW V 1(RB)doc 04/16/99_ Review and administer change control procedures through the City's Project Manager. Conduct status meetings with the City's Project Manager on a monthly basis, or as may be otherwise reasonably required to discuss project status. Provide timely responses to issues related to project progress raised in writing by the City's Project Manager. Prepare and submit, no later than the fifth business day of each month, a status report which identifies the activities of the previous month, as well as activities planned for the current month. b Establish a schedule, location and agenda to meet with.City personnel for the Project Initiation Session. City shall: a. designate City's Project Manager whose responsibilities include: - Maintain project communications with Tiburon's Project Manager. - Manage the efforts of City staff. - Assist Tiburon in developing a detailed project plan defining the detailed tasks and a schedule of Tiburon responsibilities. - Review the project plan with Tiburon's Project Manager. - Measure and evaluate progress against the project plan. - Monitor the project to insure that support resources are available as scheduled. - Attend status meetings with Tiburon's Project Manager. - Provide timely responses to issues related to project progress raised in writing by Tiburon's Project Manager. - Liaison with all City-provided third-party vendors and associated systems. - Review and administer change control procedures, hardware and software acceptance, and all related project tasks required to maintain the implementation schedule. Approve and release payments in a timely manner. b. Ensure that all appropriate City personnel attend and actively participate in the Project Initiation Session. C. Approve previously agreed to change requests as submitted by Tiburon by authorized signature(s). Pale 2 of 16 NT SOP✓V 1(RB)doc 04/16/99_ Completion Criteria: This task is considered complete when the initial project meeting has been held, a schedule of initial System Specification Review meetings is determined, and baseline software tapes and baseline systems specification documents have been delivered. Task2: Review and Develop Initial System Specification Documents Objective: Demonstrate and Document all system features and requirements. Task Description: Within thirty (30) calendar days following the Project Initiation Session, the Tiburon team will begin preparation of a System Specification document for each TIBURON system to be installed. Each system (NT CAD and NT RMS for Police) will be demonstrated to the City in one-half ('/z) day sessions. Please note: the initial demonstrations will consist of the functionality provided by the UNIX RMS and ALPHA NT CAD system. System Review meetings will be held for each Tiburon system and subsystem to be installed to demonstrate the proposed functionality. All review meetings will be supplemented with additional reviews where required to define all required internal and external system interfaces. THESE MEETINGS ARE NOT INTENDED TO IDENTIFY CUSTOMIZATION AND/OR TAILORING REQUIREMENTS. THE CITY WILL IMPLEMENT TIBURON'S BASELINE SOLUTION UNDER THE DIRECT DELIVERY PROCESS. Each document will define the functions of each transaction, including all screen input and output formats, data element definitions and report formats. During these sessions all baseline functions will be identified, described or demonstrated depending on the feature availability at that time. The resulting documents will be submitted to the City's project manager will serve as the design, implementation and acceptance guide for use throughout the project. They will also serve as detailed user reference documents for the operational systems. Responsibilities: Tiburon shall: a. Demonstrate, to City personnel, Tiburon's Baseline System Specification documents and describe additional features or items, which are to be, included in phase I of the NT Beta products (CAD and RMS). b. Conduct detailed system demonstrations where available to aid in the system review process. C. Prepare System Specification documents as described above for each Tiburon system to be installed. d. Provide the System Specification documents, when complete, to the appropriate City personnel. Page 3 of 16 NTSOW VI(m3).dac 04/16/99_ e. Identify all interfaces to be implemented according to the deliverables in the contract document, addressing all interface specifications and issues to be addressed and documented. These interfaces include: CLETS/NCIC E911 City shall: a. Provide, upon request, currently existing information, data, records, and documents and make such design decisions as may be reasonably required to document changes necessary for the Tiburon systems. b. Provide detailed specifications and definitions for all interfaces to non-Tiburon systems. C. Ensure that all appropriate City personnel are present and actively participating in scheduled Product Demonstration and System Review Meetings. d. Review the System Specification documents submitted by Tiburon. Completion Criteria: This task is considered complete fifteen (15) business days after submittal of the initial System Specification document. Task 3: Finalize Hardware Requirements Objective: Validate hardware/system software requirements. Task Description: Once final application and interface requirements are documented, the Tiburon project team will reevaluate the proposed hardware configuration for accuracy. This hardware validation step is necessary before any hardware can be placed on order. Responsibilities: Tiburon shall: a. Verify, with City personnel, Tiburon's proposed computer processor(s), system software, all associated workstations, and related components. b. Prepare and validate a final hardware/system software configuration to support all documented facilities and functions as they relate to the integrated Public Safety System and which fall within the specified system performance criteria agreed to by the parties. City shall: a. Provide, upon request, information on existing hardware/system software components and terminal networks, as well as projected utilization statistics and other information as may be reasonably required for Tiburon to validate final hardware requirements. b. Review the final hardware/system software configuration with the Tiburon project team and sign-off on the required hardware as to completeness but not as to performance. Page 4 of 16 NT SOW V 1(RB).doc 04/16/99_ Completion Criteria: This task is considered complete when the final hardware/system software configuration is completed and agreed upon with the City's Project Team. Task 4: Develop Initial Detailed Project Plan Objective: Establish the initial Detailed Project Plan for the Beta NT products. Task Description: The objective of this task is to develop the Detailed Project Plan based upon the requirements identified and the associated project objectives, plans, schedules, priorities and inter- dependencies among tasks. The resulting document defines the specific project tasks, final project implementation plan and schedule for each system comprising the overall system to be implemented. Please note: due to the nature of the project, the project plan is subject to change from time to time. Tiburon shall: a. Review with City personnel the identified implementation tasks, priorities, inter- dependencies and other requirements needed to establish the initial Detailed Project Plan. b. Prepare the Detailed Project Plan document and deliver to City within 20 business days following the completion of Task 3. C. Review the Detailed Project Plan with City personnel and make changes and/or corrections that are mutually agreed upon. City shall: a. Analyze with Tiburon project personnel the identified requirements and make such implementation decisions as may be reasonably required to finalize the Detailed Project Plan. b. Review the Detailed Project Plan and identify in writing any specific deficiencies found. Completion Criteria: This task is considered complete when the Detailed Project Plan is completed and accepted by the City. Task 5: Hardware Off-Site Installation Objective: Install/test principal NT-based hardware components. Page 5 of 16 NT S0 W V I(RI3).doc 04/16/99_ Task Description: Following the completion of the previous task, Tiburon will place on order and subsequently install a subset of the complete hardware configuration in the Tiburon Development Center (i.e. Lake Oswego, OR). This equipment will be sufficient to support initial software installation, application program modification and unit testing activities. Tiburon will assume responsibility for all software installation and testing. Responsibilities: Tiburon shall: a. Order the required computer processors and workstation equipment to support initial software installation, development and demonstration of the proposed software products. b. Install the computer hardware, system software and peripheral equipment in the Tiburon Development Center. C. Provide the City with the packing slips and serial numbers for all equipment received in the Tiburon Development Center. City shall: a. Approve for full payment the computer equipment and system software that has been delivered to the Tiburon Development Center, Completion Criteria: This task is considered complete when the computer processor, system software and related equipment is installed in the Tiburon Development Center. Task 6: NT CAD and RMS System Development Objective: Complete development of NT CAD and the port of NT RMS according to initial System Specification documents. Task Description: All NT CAD and RMS software development is the responsibility of Tiburon, with the initial phases being performed in Tiburor's Development Center, based upon the System Specification documents. Responsibilities: Tiburon shall: a. Install, develop, and unit test proposed application software which has been designated for off-site installation and modification in accordance with the System Specification documents. City shall: a. Be available to address and answer questions, which arise during the development and porting of the system. Page 6 of 16 NT SO W V 1(RB).doc 04/16/99_ b. Respond to these requests in a timely manner to avoid impacting overall project schedule. Completion Criteria: This task is considered complete when Tiburon certifies that the necessary software systems are installed, that all development identified for off-site development are completed and unit tested in the Tiburon Development Center. Task 7., NT CAD and RMS Equipment Installation At Palm Springs Objective: Transfer NT CAD and RMS computer equipment and all modified software to City facilities for on-site installation. Please note, the NT CAD software and hardware may be implemented in multiple phases prior to the NT RMS and interfaces. This provides additional testing and review for the City of the Beta NT CAD software. Task Description: Following completion of the system development, all City hardware components that were installed in the Tiburon Development Center will be de-installed and delivered to the City facilities. Any additional hardware and software components included as a contract deliverable for on-site development and unit testing will be ordered and delivered at this time. Once on-site, the hardware will be installed, communications lines and modems attached, its operation verified and the remaining on-site software implemented. Responsibilities: Tiburon shall: a. Assume responsibility for the de-installation, transportation and final site installation of the hardware and system software configuration that had been installed in the Tiburon Development Center. b. Deliver the equipment previously delivered to the Tiburon Development Center on site in the City's location, with installation of central computer hardware, client provided workstations, modems and communications equipment as proposed. C. Order any additional computer hardware necessary for the next phases of system and application software customization and unit testing, with installation in the City's site as proposed. d. Software install/test, with the City's assistance, all workstation and communications software components which are proposed for Tiburon installation, all cables and modem interfaces to City-provided interface connections. City shall: a. Provide a site adequate for the installation, operation and maintenance of all computer and workstation equipment. b. Provide all communication lines, modems, hubs and routers, cabling and other components necessary for system operation and maintenance that are not provided by Tiburon. Page 7 of 16 NT SOW Vl(RB).doc ., 04/I6/99_ c. Install and test all workstations and communications equipment not provided by Tiburon. d. Approve timely payment following delivery for all equipment and software which is delivered to and accepted by City, in addition to the hardware and software originally installed at the Tiburon Development Center, Completion Criteria: This task is considered complete when all systems, as delivered with all modifications identified for off-site development are installed on the City premises. Task 8: Message Switch Interfaces Objective: Develop, install and test the CLETS/NCIC interfaces. Please note, Tiburon expects to develop the interface for access to the state and NCIC. Task Description: The external (local and remote) interfaces will be installed, and all related functions tested and demonstrated to the City. Responsibilities: Tiburon shall: a. Develop, install and test all software required for CLETS/NCIC system interface to perform in accordance with the agreed to System Specification documents. City shall: a. Provide, on request, currently existing information, record layouts and documents necessary to establish interfaces with all local and remote systems and facilities. b. Assume responsibility for any modifications or additions to any existing City systems or non-Tiburon supplied external systems required to enable support of the interfaces (i.e. CLETS/NCIC), as defined within the System Specification Document. C. Provide all required liaison support with the agencies and vendors required to support the interfaces including requesting (but not necessarily guaranteeing) a second "test" line to the State for the prescribed period of time as identified within the System Specification Document. Completion Criteria: This task is considered complete when the CLETS/NCIC interface support is installed and unit tested. Task 9: NT CAD System Interfaces Objective: Develop, install and test all remaining NT CAD System Interfaces to include E911 and any other interfaces as so proposed. Page 8 of 16 NT SOW VI(RB)doe 04/16/99 Task Description: Once the equipment and software have been installed on the City premises, the additional contracted interfaces will be developed, installed and tested. It is anticipated that the CAD interfaces will be implemented with the RMS install and interfaces. Responsibilities: Tiburon shall: a. Develop, transfer, install, and unit test all software required for the interfaces to perform in accordance with the agreed to System Specification documents. City shall: a. Provide, on request, currently existing information, detailed record layouts, interface specifications and documents necessary to establish interfaces with all local and remote systems and facilities not provided by Tiburon. b. Assume responsibility for any modifications or additions to any existing or non-Tiburon supplied systems required to enable them to support the interfaces, as defined in the System Specification documents. c. Provide all required liaison support with the agencies and vendors required to support the interfaces. d. Commence Acceptance Test Procedures as agreed upon. Completion Criteria: This task is considered complete when each interface is installed and unit tested. Delays or unavailability of City-provided equipment, software or third party systems shall not delay the progress or acceptance of the project. Task 10; Geographic File Loading Objective: Provide the City's Geofile in the Tiburon Geographic Format (TGF) and load the file into CAPS for geographic operation purposes. Task Description: Tiburon will provide the Geofile and load the file into the NT CAD and RMS systems. The City will be responsible for the personnel required to validate the data. After validation of the Tiburon provided file, the City will then take over the responsibility of submitting updates as required to this file. Responsibilities: Tiburon shall: a. Provide the City with a compatible geography file for the purposes of the NIT CAD and RMS solution. b. Load this Geofile into CAD and RMS. Page 9 of 16 NT SOW V1(RB).doc 04/16/99_ C. Work with the assigned City personnel to develop validation criteria . City shall: a. Take responsibility for initial validations and ongoing file correction notification. b. Provide information as requested by Tiburon to establish the base geographic information to include all necessary specific data for Police and other agency specific information as instructed by Tiburon. Completion Criteria: This task is considered complete when Tiburon has loaded the City's Geography file into CAD and RMS. Task 11: General File Building Objective: Establish test and production files. Task Description: The Tiburon project team will be responsible for building a set of test/training files and for defining all production data files. The Tiburon project team will then train and assist City staff in the entry of agency-specific information such as code tables, unit identification, reporting areas, common places, unit recommendation criteria, etc. Responsibilities: Tiburon shall: a. Build a set of test/training files and define all production data files. b. Provide education to City personnel on the entry of agency-specific data. c. Provide data input specifications for data and tables required for the system. d. Provide and operate the computer programs necessary to accept all required geographic input data. City shall: a. Develop and enter all agency-specific input data that is to be entered manually. b. Assume responsibility for all data file entries, except as otherwise defined for the geographic file load. C. Be responsible for the accuracy of the data provided by the City. Completion Criteria: This task is considered complete when Tiburon has trained City staff on procedures for loading agency-specific data. Page 10 of 16 NT SOW V1(RB).doc 04/16/99_ Task 12: NT CAD and RMS Ancillary System Installation Objective: Install, configure and demonstrate ancillary systems. Task Description: After CAD and RMS have been successfully installed and are being prepared for the functional test phase, all remaining ancillary systems will be installed. Depending upon the final project plan, one or more of these systems may be installed at an earlier date. These systems include, according to the contract deliverables: CARS—CAD Activity Reporting System ARS —Automated Report Writing System Responsibilities: Tiburon shall: a. Provide the software and services to install Tiburon and third party licensed software. b. Configure the systems as applicable, according to the System Specification document. C. Interface to system network, according to the network configuration. d. Test the operation of data transfer functions. e. Test the operation of the ancillary system. City shall: a. Provide the required computer and network equipment not specifically provided by Tiburon according to the contract deliverables. b. Provide assistance to Tiburon staff in cases where non-Tiburon system databases are to be accessed. G. Provide applicable data in the format necessary for system operation where non-Tiburon system databases are to be accessed. d. Working with Tiburon, verify the operation of the applicable systems. Completion Criteria: This task is considered complete when all major system functions have been demonstrated to operate in accordance with the System Specification Document, with minor deficiencies documented for subsequent correction following this task. Task 13: NT CAD and RMS Functional Testing Objective: Perform functional tests of all Tiburon provided systems. Page 11 of 16 NTSOW V1(RB).doc 04/16/99_ Task Description: Following unit testing of individual system components, Tiburon will demonstrate the applicable functions and features for all installed systems. The system specification documems will serve as the guidelines for these demonstrations. City staff will perform functional testing of the individual components of all systems and subsystems. Responsibilities: Tiburon shall: a. Provide the City with a final, updated version of the System Specification Document for purposes of functional testing. b. Certify all applicable software and systems as ready for functional testing. C. Demonstrate the functions of the installed systems, using the System Specification documents as a test guideline. d. Review any discrepancies in functionality that are identified by City. e. Provide software changes or documentation modifications as needed to correct the discrepancies. City shall: a. Generate test data files needed for functional testing. b. Verify each function identified in the System Specification Document as to its operation as documented. C. Document each discrepancy between system functionality and the System Specification Document. d. Work with Tiburon to identify the type of correction needed to ensure that each system conforms to the System Specification Document. Completion Criteria: This task is considered complete when all major system functions have been demonstrated to operate in accordance with the System Specification Document, with minor deficiencies documented for subsequent correction following this task. Task 14: Final Equipment Installation Objective: Install all remaining cables, modems, and any other equipment required for production operation. Task Description: Prior to the final complete system integration test in the next task, all remaining computer, communications and related components required for production will be installed. Tiburon will work with City staff to connect and test the equipment and data communications. Page 12 of 16 NT S0 W V 1(RB).doc OM16/99_ Responsibilities: Tiburon shall: a. Install all remaining cabling and equipment for which Tiburon is responsible. b. Provide the City with software configuration diskettes for any remote intelligent workstations. C. Assist City staff in the installation, configuration, software loading and testing of all City- provided equipment. City shall: a. Provide, configure and install all remaining equipment and facilities not provided by Tiburon. b. Complete any site modifications to allow successful equipment installation C. Provide and install all necessary UPS equipment not provided by Tiburon. d. Install and verify the operation of all City-installed workstation system software. e. Approve for payment the invoices for all equipment provided as part of this task. Completion Criteria: This task is complete when all equipment required for production operation has been installed and tested. Task 15: CAPS12000 System Integration Testing Objective: Perform integration testing of all Tiburon provided systems and interfaces. Task description: Following functional testing of individual system components, Tiburon will demonstrate all internal and external interfaces to ensure that the combined systems operate together as defined in the System Specification Document. City staff will conduct the integration testing of the overall public safety system. Responsibilities: Tiburon shall: a. Certify the interfaces as ready for integration testing. b. Demonstrate all inter-system communications between installed Tiburon systems and between Tiburon and non-Tiburon systems, according to the System Specification documents. C. Assist the City in testing each interface. d. Review any discrepancies that are identified by City. Page 13 of 16 NTSOW V1(RB).dcc 04/16/99_ e. Provide software or documentation modifications as needed to correct the discrepancies. f. Order and install as proposed all remaining equipment needed for initial production operation. City shall: a. Verify all inter-system communications between installed Tiburon systems and between Tiburon and non-Tiburon systems to ensure conformance with the approved system specification documents. b. Document each discrepancy between system functionality and the System Specification Document. C. Work with Tiburon to identify the type of correction needed to ensure that each system conforms to the System Specification Document. Completion Criteria: This task is considered complete when NT CAD and NT RMS for Police, the internal and external interfaces, CARS, and ARS have been demonstrated according to the System Specification documents. Any discrepancies discovered following the completion of this task will be corrected as part of the warranty phase. Task 15: NT CAD and RMS Technical/User Training and User Documentation Objective: Conduct CAD and RMS technical and user training in accordance with the Detailed Project Plan. Task Description: A training program will be conducted as scheduled in the Detailed Project Plan. A "Train-the- Trainer" approach will be used to train City selected personnel on the use of the systems and City Technical personnel on the operation and support of the installed systems. Responsibilities: Tiburon shall: a. Provide CAD and RMS training for City Technical and Training staff members for all Tiburon software installed. Training will be provided on all standard shifts, not to exceed eight hours per 24-hour period. b. Provide printed training materials, including lesson plans for the courses in the form of reproducible masters and machine-readable documents. C. Provide technical and user manuals for all Tiburon systems installed. City shall: a. Designate and assign personnel to receive and then conduct training. b. Provide suitable classroom facilities with computer workstation equipment for each staff member participating in the training session. Page 14 of 16 NT SO W V i(RB).doc 04/16/99_ C. Ensure that appropriate City Training personnel are available to actively participate in the scheduled training programs. Completion Criteria: This task is considered complete when the scheduled technical and user training on all installed systems is completed. Task 16: NT CAD and RMS Operational Certification and Production Cutover Objective: Certify CAD and RMS and cut over to production status. Task Description: Once functional testing is complete, Tiburon will certify systems for operational status and then assist the City in placing all systems into productive use. Responsibilities: Tiburon shall: a. Notify the City when the system is certified and ready for production operation. b. Assist the City staff in placing the system into a production status. a Remain on-site to monitor the initial operation of CAD and RMS and answer operational questions. d. Assist the training staff in utilizing the system and the computer operations staff in supporting the system. City shall: a. Place the software into production within five (5) days following certification and begin operational use in consultation with Tiburon and in accordance with the Detailed Project Plan. Completion Criteria: This task is considered complete when the systems have been certified by Tiburon as ready for productive use, and production operation has begun. Task 17. NT CAD and RMS Final Acceptance Objective: Certify completion of NT CAD and RMS system installation Task Description: Following the successful completion of all preceding tasks and the delivery of all required documentation including updated source code placed into ESCROW and user documentation to reflect the baseline system, the system will be accepted for final payment. Page 15of16 NT S0 W V I(RB).dcc 04/16/99_ Tiburon shall: a. Certify to the City in writing that all products have been delivered and all requisite tests have completed successfully. b. Provide City with all remaining documentation and associated information as listed as project deliverables. City shall: a. Verify that all products have been delivered and all requisite tests have been successfully completed. b. Approve payment or payments associated with final system acceptance, including any held-back payment amounts. Completion Criteria: This task is considered complete when all Tiburon products and documentation have been delivered to the City, and all deficiencies as documented by the City and delivered following Final Acceptance (Task 17) have been addressed or corrected to meet the minimum criteria as defined in the System Specification documents. Task 18: Post Implementation Support Objective: Provide warranty support following final system acceptance. 'task Description: During the six month period following final Acceptance of the system Tiburon warrants that all Tiburon licensed systems and all sub-contractor's licensed systems (except as defined above) will operate in accordance with the agreed to System Specification documents. During this period all reproducible bugs and system errors will be corrected and Tiburon will provide such services as are described in the Warranty/ESP Agreement between the parties. Responsibilities: Tiburon shall: a. Provide for six-month warranty support according to the provisions of the contract for services as defined in the Warranty/ESP Agreement. b. Provide costs to effect an annual maintenance payment schedule for all integrated Public Safety Systems, thereafter, if the City is desirous of annual renewal upon the same date. City shall: a. Assume responsibilities as defined in the Warranty/ESP Agreement. Page 16 of 16 NT SOW VI(RB).doc 04/16/99_ City of Palm Springs Contract Amendment No. 01 To Contract Services Agreement for Computer Assisted Public Safety System Attachment 1— Confidential Disclosure Agreement CONFIDENTIAL DISCLOSURE AGREEMENT fl This CONFIDENTIAL DISCLOSURE AGREEMENT is made and entered into as of the' Illv"y day of March 1999,by and between Tiburon,Inc., a Virginia corporation,having its principal place of business at 39350 Civic Center Drive,Suite 280,Fremont,CA 94538 ("TIBURON"), and the City of Patin Springs,California, a municipal corporation, with its offices at 200 South Civic Drive,Palm Springs,CA 92262("Other Party"). TIBURON and Other Party are each herein called a"Party" and are collectively called the"Parties." 1. Background. The Parties have executed a comi act with an effective date of 8 February 1999 underwhich TIBURON is to install a UNIX-based computer aided dispatch("CAD") system and Records Management System("RMS"). TIBURON is completing development of NT-based versions of CAD and RMS. Other Party is interested in evaluating the NT-based CAD and RMS systems as alternatives in lieu of the UNIX-based systems to be installed by TIBURON, To facilitate Other Party's evaluation of the NT- based CAD and RMS,TIBURON must disclose to Other Party certain marlietinb sensitive Confidential Information pertaining to those systems,including,but not limited to,product development time lines and product pricing. 2. Disclosure of Confidential Information. Information shall be considered Confidential Information if it is identified in writing as confidential or proprietary, or if disclosed verbally or visually, upon notice in writing specifying the Confidential Information within fifteen(15) days of such disclosure. Each of the Parties shall hold in confidence and shall not disclose to any third party any Confidential Information disclosed to it by the other,except as expressly permitted under this Agreement. Each of the Parties shall use such Confidential Information only for the purpose of which it was disclosed and shall not exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each of the Parties shall disclose Confidential Information of the other Party only to its employees and consultants who have a need to know such Confidential Information in the course of the performance of their duties and who are legally bound to protect the confidentiality of such Confidential Information: in the case of such consultants,the Party receiving such Confidential Information shall obtain a written agreement substantially similar to the Agreement. 3. Protection of Confidential Information. Each of the Parties shall protect the other Party's Confidential Information by using the same degree of care,but not less than a reasonable degree of care,to prevent the unauthorized use,dissemination,publication of,or access to,the disclosing Party's Confidential Information as it uses to protect its own Confidential Information. 4. Property Rights in Confidential Information. Confidential Information will remain the property of the disclosing Party notwithstanding disclosure hereunder. Disclosure of Confidential Information hereunder shall not be deemed to constitute a grant,by implication or otherwise,of a right or license to the Confidential Information or in any patents or patent applications,trademarks or copyrights of the disclosing Party. 5. Limitation on Obligations. The obligations of the Parties specified in Section 3 above shall not apply to any Confidential Information which: (a) is otherwise in the public domain at the time of disclosure,or becomes publicly known,in each case, through no breach of this Agreement by the receiving Party,provided,however, that information shall not be disqualified as Confidential Information(i)merely because it is embraced by more general or generic information which is in the public domain or available from a third Party,or(ii) if it can only be. reconstructed from information taken from multiple sources,none of which individually shows the whole combination(with matching degree of specificity), its principle of operation and/or the relevant use or method of use, as applicable; Page 1 of 3 (b) becomes known the receiving Party through disclosure by sources other than the disclosing Party having the rights to disclose such Confidential Information; (c) is approved for release by written authorization of an officer of the disclosing Party; (d) the information is required to be disclosed by any applicable judgment, order or decree of any court or governmental body or agency having jurisdiction or by any law,rule or regulation or stock exchange rule or requirement(provided that in connection with any such disclosure,the Party disclosing such information shall give to the other Party reasonable prior notice of the disclosure of any such information pursuant to this exception and shall obtain,to the extent possible, confidential treatment for such information by any authority requiring delivery of such information);or (e) is transmitted by a Party after receiving notification from the other Party that it does not desire to receive any further Confidential Information. 6. Return of Documents. Each of the Parties shall, upon the written request of the other Party, or upon termination of this Agreement,return to the other Party all Confidential Information, and any derivatives thereof,from such Party received pursuant to this Agreement(and all copies and reproductions thereof), except that one(1) copy thereof may be retained by such Party's attorneys (who execute an agreement substantially similar to this Agl eement) solely for the purpose of determining the extent of its obligations hereunder. 7. Term and Termination. This Agreement may be terminated at any time by either Party Unless earlier terminated, this Agreement and the exchange of Confidential Information shall expire one(1) year from the Effective Date and any information exchanged after such termination or expiration shall not be considered Confidential Information. The obligations of Sections 2, 3,4, 6 and 8 hereof,however,shall survive term nation of this Agreement. 8. General. (a) The receiving Party shall not reverse-engineer, deconnpile,or disassemble any software disclosed to it and shall not remove,overprint or deface any notice of copyright,trademark,logo, legend,or other notices of ownership form any originals or copies of Confidential Information it obtains from the Disclosing Party. (b) CONFIDENTIAL INFORMATION IS PROVIDED "AS IS"WITH ALL FAULTS. IN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR TIE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any representation, warranty, assurance, guarantee or inducement by either Party to the other with respect to the infringement of trademarks,patents, copyrights, any right of privacy or any rights of third persons. (c) This Agreement and a Party's rights,duties and obligations under this Agreement are not transferable or assignable by that Party without the express prior written consent of the other. Any attempt to transfer or assign this Agreement or any of the rigbts, duties or obligations under this Agreement without such consent is void. (d) This Agreement can only be modified by a written agreement duly signed by the persons authorized to sign agreements on behalf of the parties hereto, and variance from the terms or conditions of this Agreement will be of no effect. Page 2 of 3 (e) If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable,the validity,legality and enforceability of the remaining provisions shall not in any way be affected or be impaired thereby. (f) This Agreement shall be governed and construed in accordance with the laws of the State of Virginia,USA. (g) This Agreement is the complete and exclusive statement,of the agreement between the parties as to the subject matter hereof and supersedes all communications between the parties related to the subject matter of this Agreement. (h) A waiver of a breach or default under this Agreement shall not be a waiver of any other or subsequent breach or default. The failure or delay in enforcing compliance with any term or condition of this agreement shall not constitute a waiver of such term or condition unless such term or condition is expressly waived in writing. (i) In the event of a breach or threatened breach by a Party of any of the provisions of this Agreement, the other Party,in addition to any other remedies available to it under law,shall be entitled to an injunction restraining the breaching Party from the performance of acts which constitute a breach of this Agreement. This Agreement shall be binding upon the parties hereto and inure to the benefit of the parties hereto, their respective successors and permitted assigns. Neither Party shall export or transmit,directly or indirectly, the Confidential Information or any technical data received from the other Party outside of the United States (including,but not limited to, the export or delivery of any such information to foreign parties within the United States) in violation of export laws and/or regulations of the United States or any other applicable country. IN WITNESS WIIEREOP.the parties hereto have executed this Agreement effective the day and year first above written. Tiburon,Inc. Other Party _ By: tG� By: F7j71'ra �-1 `, f 'i:-t Name: Craig A.Nelson e: I,f-%llt � Title: Vice President,Business Development Title: Page 3 of 3 0 WWI k W BILL TO: CITY OF PALM SPRINGS CTY OF PALM SlIMINK;E,' 1=HQ,*50E DEPT. PURCHASE ORDER PA0 QUOTEDBY: fyGnst #40^10 POLICE ADMIN & ENFORCEMENT DELIVER TO: 200 S. Quic Drive DATE: C.2/05,'99 P. O. Box 2743 Palm Springs , Ch. 92263-2743 """ Destination TERMS: l,j a t —,,L 11124 11124 DELIVERY DUO 05/28/99 VENDOR: TIBURON, INC. 39350 CIVIC CENTER DRIVE INFO-9-43521 SUITE 280 FREMONT, CA - --"r B1D#: ACCOUNT: Thmn iz _m----0 Az Hum! I Drovije . install and place into proper i W 650172 . 00 650172 . 00 operation a Computer Assisted Public Saiety Sys ! Qm consinvino of a Computer Aided Dispatch Direct Qlivery Product system and a Records management Systern Direct DnliQery Product at the Palm Springs Police Departmsnt 9 PX� Wo" This purcha5a order is for payment Purposes only and does not constitute Notice to Proceed vj -' -d' In aLcordanne with Agreement No . 4A50 AppPowed by City Council via Minute Order No . 6224 dated 12116, 19W . ----------- Subtotal : 650172 . 00 Sales Tax : 0 . 00 ORDER Total : 650172 . 0 it By accepting order,seller agrees to swept all terms and con- dMons appearing an the lace and reverse side W this purchase rtprz p2ynq'nz 4r,rrnc On kwoxs. order or attached hereto. 2. NES0 mbm gsspa,akc druvfd o for oacr.area, at Fjsjaml Bruno johnson WP& E ' P' M PACE I TIBURON, INC. AGREEMENT FOR EXTENDED SERVICE' This Agreement is entered into this 20" day of April, 2001, by and between the City of Palm Springs (hereinafter referred to as "CLIENT") having its primary place of business at 200 South Civic Drive, Palm Springs, California 92262 and Tiburon, Inc. (hereinafter referred to as "TIBURON"), having its primary place of business at 39350 Civic Center Drive, Suite 280, Fremont, California 94538. IT IS HEREBY AGREED: WHEREAS, CLIENT has determined that it requires the categories of application software maintenance on the software systems which have been provided to CLIENT by TIBURON under a separate agreement (hereinafter the "PROGRAM"). These software systems are identified in Exhibit A, which is attached hereto and hereby incorporated by reference, and WHEREAS, CLIENT requires the provision of professional and technical services and materials as specified in this Agreement, and WHEREAS, TIBURON is qualified to provide the services and materials required by CLIENT as specified in this Agreement. NOW THEREFORE, in consideration of the mutual covenants contained herein, CLIENT and TIBURON agree as follows: 1. PERIOD OF PERFORMANCE The term under which TIBURON shall be obligated to perform under this Agreement shall be for the time period specified in Exhibit A, and shall continue for this time period or until this Agreement has otherwise been terminated as provided herein. 2. STATEMENT OF WORK With respect to the PROGRAM, TIBURON shall perform the following maintenance services: a. TIBURON shall retain a copy of the PROGRAM source code. b. If during the term of this Agreement, (1) CLIENT discovers defects in the PROGRAM such that the PROGRAM will not perform In accordance with the specifications as previously accepted by CLIENT, (2) CLIENT notifies TIBURON of such defects in writing; and (3) such defects are reproducible, then TIBURON shall provide timely corrections of such defects. C. If problems arise concerning the PROGRAM, TIBURON shall provide telephone assistance and support via remote dial-in, d. If remote support is available, but an on-site visit is required to correct the defect, TIBURON will travel to the site at no additional charge if the problem lies solely with TIBURON application software. If CLIENT is unable to provide remote dial-in and an on-site visit is necessary to correct the problem, TIBURON will bill for travel and per diem costs. If the problem is CLIENT generated, CLIENT is responsible for all fees and expenses and will be billed at TIBURON's current service rate in addition to all travel costs. e. TIBURON shall provide CLIENT with a quarterly status report to include a summary Palm Springs ESA Page 1 of 5 L , of site activity and client requests. f. TIBURON shall provide a toll-free telephone service for routine operational and technical assistance. Technical and operational service shall be available during TIBURON's normal support hours of 8:00 a.m. to 5:30 p.m. Pacific Time (excluding weekends and TIBURON holidays) and at additional times according to the terms defined in the Schedule of Services and Charges in Exhibit B which is attached hereto and hereby incorporated by reference. g. TIBURON shall provide software upgrades and enhancements as per the Schedule of Services and Charges attached hereto as Exhibit B. Any installation and special tailoring required shall be charged at the Technical Service Rate as identified in Exhibit B. All such software provided by TIBURON shall be covered by the terms of this Agreement. If CLIENT ha"s source code on-site, and corrections for reported problems or defects are due substantially to CLIENT's errors or CLIENT's changes to the system environment, or relate to CLIENT-modified portions of the PROGRAM or to portions of the PROGRAM affected by CLIENT- provided software, or if diagnosis of problems reported erroneously shall be performed by TIBURON, CLIENT will be charged at the Technical Service Rate, plus applicable travel and per diem expenses. 3. CLIENT RESPONSIBILITIES CLIENT agrees to provide those services and facilities defined below which are necessary for the provision of services by TIBURON under this Agreement. CLIENT and TIBURON agree that the scope and schedule of services to be provided by TIBURON under this Agreement depend upon the timely fulfillment of CLIENT responsibilities. a. CLIENT shall assign a coordinator to ensure that CLIENT's duties set forth in this Agreement are met, to coordinate appropriate schedules in connection with TIBURON's services hereunder, and to provide other coordination activities which are necessary for TIBURON to perform its services hereunder. CLIENT shall maintain performance logs documenting trouble calls and availability of on-line systems according to procedures provided by TIBURON. b. CLIENT shall assign individuals who are familiar with the PROGRAM, and who are able to provide on-site technical assistance as required by TIBURON to aid TIBURON in performing its services. CLIENT personnel will screen operational assistance calls and handle operational problems where appropriate. C. CLIEiNIT shall ensure that appropriate maintenance activities are carried out on a regularly scheduled basis in accordance with site documentation. This includes but is not limited to backing up the database and journal lags, purging out of date records and running reports and performing diagnostics as requested by TIBURON. d. CLIENT shall provide dial-in access to CLIENT's computer, making it accessible by TIBURON for remote service. CLIENT is responsible for the provision of all local equipment (dial-up modems, telephone termination, communications port, etc.) required to support access by TIBURON. If CLIENT has source code on-site, CLIENT shall also compile programs and run appropriate tests following each remote access as requested by TIBURON. In the event that CLIENT does not comply with these provisions, Technical Service charges as specified in Exhibit B shall apply. e. CLIENT shall meet with TIBURON as may be reasonably required to discuss Palm Spnngs ESA Page 2 of 5 operational issues and the status of the PROGRAM and provide timely responses to issues related to maintenance and PROGRAM performance raised in writing by TIBURON. f. CLIENT shall update and maintain the input data as may be required for satisfactory PROGRAM operation, and be responsible for the accuracy of CLIENT-provided data. g. If CLIENT has source code, CLIENT shall provide TIBURON with a complete copy of the production source code in a format compatible with TIBURON's support environment so that TIBURON has ready access to the code for maintenance work. Complete replacement copies shall be made available on a timely basis upon request by TIBURON. h. If CLIENT has source code, CLIENT shall be responsible for storing a complete copy of the production source code off site as an emergency back up. 4. PAYMENT CLIENT shall make payments to TIBURON based on invoices submitted. Schedules and amounts of invoices shall be determined in accordance with Exhibit B. 5. INDEPENDENT CONTRACTOR Each party hereto, in performance of this Agreement, will be acting in its own capacity. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. TIBURON will be responsible for payment of payroll taxes, unemployment insurance, and similar obligations with respect to its own employees, and no deductions shall be made from payments due under this Agreement for that or any other related reason. 6. LICENSE With respect to each change, correction, or enhancement to PROGRAM furnished to CLIENT under this Agreement, TIBURON grants to CLIENT a perpetual, non-exclusive, non-assignable, non- transferable license to use such change, correction, or enhancement solely as part of the PROGRAM. 7. CLIENT MODIFICATIONS If CLIENT has source code on-site, CLIENT shall not make any changes or modifications to TIBURON application software or to application software operating environment without TIBURON's prior written authorization. Any such changes without TIBURON's prior written authorization shall be deemed unauthorized and in violation of the terms and conditions of this Agreement. At no additional cost to CLIENT, TIBURON shall provide updates to the TIBURON External Interface Software and/or documentation, including all existing screen formats currently supported by TIBURON, for all legal requirements or modifications mandated by NCIC, or the CLIENT's respective State, when such requirements or modifications require a programming/source code change to the Licensed Software. Changes mandated or offered by CLIENT's respective City and/or County are not covered. Changes to State and/or NCIC protocols are considered outside the scope of this Agreement. Palm Springs ESA Page 3 of 5 8. CONFIDENTIAL INFORMATION TIBURON shall regard all CLIENT files and data as CLIENT's confidential information. TIBURON shall not release said data to outside parties without written consent of CLIENT. To the extent allowed by law, CLIENT shall regard all software and documentation provided by TIBURON as confidential information. CLIENT shall not release or provide access to said software and documentation to outside parties without written consent of TIBURON. 9. TERMINATION This Agreement may be terminated by either party by giving at least a ninety (90) day advance written notice to the other party. Upon termination of this Agreement for any reason, the provisions relating to Confidential Information and License shall survive. 10. INSURANCE TIBURON shall, at its own expense, at all times while TIBURON is performing services at CLIENT's facilities, maintain in force: a. A comprehensive general liability insurance policy including coverage for contractual liability for obligations assumed under the contract documents, blanket contractual liability, products and completed operations and owner's and contractor's protective insurance; and b. Comprehensive automobile liability insurance policy including owned and non-owned automobiles; and G. Liability coverage shall be equal to or greater than the limits for claims made under the California Tort Claims Act with minimum coverage of $500,000 per occurrence (combined single limit for bodily injury and property damage claims) or $500,000 per occurrence for bodily injury and $100,000 per occurrence for property damage. Liability coverage shall be provided on an "occurrence" basis. "Claims made" coverage will not be acceptable. Certificates of insurance acceptable to CLIENT shall, upon request, be filed with CLIENT, prior to the commencement of any services at CLIENT facilities by TIBURON Each certificate shall provide that coverage under the policy cannot be canceled and restrictive modifications cannot be made until at least 30 days prior written notice has been given to CLIENT. 11 AMENDMENTS This Agreement may be amended upon mutual written agreement by CLIENT and TIBURON to include, but not be limited to, additional services and support, continuation of maintenance of the equipment and software, replacements, and upgrades. 12. APPLICABLE LAW This Agreement shall be construed in accordance with and governed by the laws of the State of California. Palm Springs ESA Page 4 of 5 13. LIMITATION OF LIABILITY AND REMEDIES a. Limited Warranty While this Agreement is in effect, TIBURON warrants that all computer programs developed or provided under this Agreement will conform to such applicable specifications as may be developed under this Agreement. THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. b. Limitation of Damages and Remedy TIBURON's liability hereunder for damages shall not exceed the annual maintenance charge paid to TIBURON for the period in which the cause of action occurred. In no event shall TIBURON be responsible for any indirect, consequential, incidental, or tort damages. 14. ENTIRE AGREEMENT This Agreement sets forth the entire understanding between the parties as to the subject matter hereof and merges all prior discussions between them, and neither party shall be bound by any prior representations, conditions, understandings, or warranties except for original system warranties or those expressly provided herein, or in any surviving terms of prior written agreements between the parties hereto, or in any written agreements signed by representatives of the parties on or subsequent to the date of this Agreement. No provision appearing on any form originated by CLIENT shall have any force or effect unless such provision is expressly accepted in writing and signed by a representative of TIBURON. IN WITNESS WHEREOF, the parties have hereunto set their hands on the dates set forth below. CLIENT __� TIBURON signature of Authorized Representative Signature of Authorized Representative 1i i' g zi,tA '' Charles H. Bridges Jr. Name Name Vice President CFO Title Title zJr 1 � ✓ r Lj L f.''. April 20 2001 Date ✓ Date Palm Springs ESA Page 5 of 5 EXHIBIT A TO THE AGREEMENT FOR EXTENDED SERVICES SOFTWARE SUPPORT AND MAINTENANCE FEES City of Palm Springs CONTACT—Jim Runge 200 South Civic Drive CLIENT# U213-01 Palm Springs, CA 92262 Support and Maintenance provided to the CLIENT listed above shall be pursuant to the terms and conditions of the TIBURON Agreement for Extended Service dated April 20, 2001. This Exhibit A shall become part of said Agreement upon signature and shall be effective from July 1, 2001, to June 30, 2002. The Agreement applies only to the application software and software modules listed below and will be billed in advance annually, unless otherwise set forth in Exhibit B. Upon future renewals, there will be an additional charge to any CLIENT requiring semi-annual or quarterly invoices. Software Model Months CPU Make Model Serial # Total Fees CAD 12 $10,511.00 CARS 12 $ 9,873.00 Total $20,384.00 Optional items from Exhibit B (to be filled in by CLIENT) Software Model Months CPU Make Model Serial # Total Fees Grand Total IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives. CLIENT TIBURON By. � (Authorized Signature, (Authorized Signature) l_ :� J !Frame: �1' ;,_�,.� /✓- ✓\ ✓.=d Name: Charles H. Bridges, Jr. Title:�6'4 as �—j >G _ S,r ;`ti_ Title: Vice President & CFO Date: >✓r.r i 1 J Lt• > Date: April20 2001 Palm Springs Ex A&B July 01 -Jun 02 Page 1 of 1 EXHIBIT S TO THE AGREEMENT FOR EXTENDED SERVICE SCHEDULE OF SERVICES AND CHARGES BASIC SERVICES $ $20,384.00 per year TIBURON will provide basic services as defined in the Statement of Work contained in Section 2 of the Extended Service Agreement for the software systems as defined in Exhibit A. Support for Computer Aided Dispatch, Message Switch and Corrections Management Systems is 24 hours per day, 7 days per week. Support for other products is from 8:00 a.m. to 5:30 p.m. Pacific Time, excluding weekends and normal TIBURON holidays, unless the "24/7" Service Option is selected. In all cases, call-out charges will apply as described below. "24/7" SERVICE OPTION $7,000 per year/per system (initial) Products not normally covered by 24-hour support may optionally be supported with 24-hour coverage (including TIBURON holidays) Applicable call-out charges continue to apply. If this option is not in force, technical support requests outside of covered hours are charged at technical service rates as defined below. RELEASE MANAGEMENT PROGRAM Included/Not included New software releases are provided for CLIENT'S version of the RISC and HP CAD or the SS/2000 Police and Fire RMS Systems and Relational Data System programs. New software versions typically include significant application changes and may require TIBURON's technical support to install. TIBURON services may be charged at the Technical Services Rate defined below, if agreed upon in writing, in advance. Significant application changes include but are not limited to system architecture, user interfaces, system externals, and database structure Software releases include problem fixes and software enhancements. They do not typically require TIBURON's on site assistance to install. TIBURON installation and special tailoring, if required, may be charged at the Technical Service Rate defined below. New Products Additional TIBURON software systems, subsystems and TIBURON provided third-party products, such as hardware, and networking software may be acquired under this Agreement. TIBURON installation, special tailoring, license fees and third-party peripherals required shall be charged at the then current Technical Services Rate or as quoted by the third party. PREPAID TECHNICAL SUPPORT RESOURCE POOL $ (amount) (initials) A dollar amount is allocated to a Technical Support Resource Pool. The charges for Technical Support will always be calculated at the TIBURON Facility rate and will be subtracted from this dollar amount as incurred. Any unused portion of this account is carried over to the next contract year. Palm Springs Ex A&B July 01 -Jun 02 Page 1 of 3 GOLD CARD SERVICE OPTION Quote available;on request A total support program is tailored for CLIENT and includes a schedule of on-site visits by TIBURON personnel for data base management, working with end users to identify and resolve problems and to apply agreed upon software changes, installation of new software products obtained through this Agreement, and a comprehensive training program. (If selected by CLIENT the terms of this option are defined in the Gold Card Service Schedule will be attached as Exhibit C and incorporated herein by reference.) OPERATIONS REVIEW Included Tiburon personnel will visit CLIENT site periodically and meet with management, operations and other user personnel to conduct an operations review of the systems and an analysis of the CLIENT's automation requirements. A report will be produced to include observations and recommendations regarding the CLIENT's use of the system. Working with the CLIENT, this review will be further documented in the form of a multi-year automation plan for the CLIENT. There will be no charge for this service if total annual maintenance exceeds $20,000. TIBURON USER GROUP MEMBERSHIP Included The following is paraphrased from the recently adopted Bylaws. Voting membership in the Tiburon User Group, as set forth herein, is included in the Basic Service. The quantity of voting members is based on the number of Tiburon products installed, with the appropriate software licenses, at the CLIENT. For purposes of establishing voting memberships, a product is defined as SS/2000 — Computer Aided Dispatch, Police Records Management, Fire Records Management, Correction Management System, and Mobile Data System. The Tiburon User Group Conference is held annually at a location to be determined. TECHNICAL SERVICE RATES Technical Services Rates shall be deducted from the Prepaid Technical Support Resource Pool, or if that option is not available, they shall be invoiced to CLIENT as incurred. 1. Technical Service Rates Technical support shall be charged at the following rates: At TIBURON Facilities: $ 125 per staff hour At CLIENT Site:. $ 150 per staff hour A minimum of four (4) hours per occurrence will be charged for work conducted at TIBURON facilities and a minimum of eight (8) hours at CLIENT site for Technical Services not covered under Basic Services or "24/7" Service Option as described previously. 2 Materials Travel and Per Diem Expenses When applicable, all special materials, plus travel and per diem expenses shall be charged to CLIENT at cost. 3. Call-Out Charges Systems not covered under 24/7 support, call-outs will be billed at $250 per call. After the first hour, the rate is $250 per hour with a two-hour minimum. If CLIENT'S systems are covered under the 2417 support, the off-hour call-out fee is $50. Palm Springs Ex A&B July 01 -Jun 02 Page 2 of 3 4. Remote Access All charges in this Agreement are predicated on CLIENT providing the required hardware, software, and operating environment for dial-in service. If CLIENT does not provide this support for dial-in service, the following additional charge will apply: $500 per month per system supported In addition, travel and per diem expenses for on-site support required due to lack of remote access will be charged as defined in Exhibit B, page 2, item 1. PAYMENT PROVISIONS Payments due under this Agreement shall be made based on invoices submitted in advance on an annual basis for Basic Services and Options or as incurred for miscellaneous expenses. TIBURON reserves the right to adjust the CLIENT's annual fee with a ninety (90) day advance written notice of adjustments. The adjustment will become effective on the anniversary date of this Agreement. The amount of any tax, license, or permit fees, but not including taxes on income, that may be imposed or levied upon this Agreement, the transaction, or the materials or services delivered hereto, shall be added to each invoice and paid by CLIENT in addition to the amounts shown above. CLIENT shall pay each invoice within thirty (30) days of receipt thereof. IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives. CLIENT //� TIBURON A4 /Authorized signature— Authorized signature t Charles H. Bridges Jr. Name Name Vice President & CFO Title Title April20 2001 Date / Date Palm springs Ex A&B July 01 -Jun 02 Page 3 of 3 EXHIBIT A TO THE AGREEMENT FOR EXTENDED SERVICE SOFTWARE SUPPORT AND MAINTENANCE FEES CLIENT CONTACT—Jim Runge City of Palm Springs CLIENT#U213-01-A 200 South Civic Drive Palm Springs, CA 92262 Support and Maintenance provided to the CLIENT listed above shall be pursuant to the terms and conditions of the TIBURON Agreement for Extended Service dated April 20, 2001. This Exhibit A shall become part of said Agreement upon signature and shall be effective from January 1, 2001, to June 30, 2001. The Agreement applies only to the application software and software modules listed below and will be billed in advance annually, unless otherwise set forth in Exhibit B. Upon future renewals, there will be an additional charge to any CLIENT requiring semi-annual or quarterly invoices. Software Model Months CPU Make Model Serial# Total Fees CAD 6 $5,005.00 CARS 6 $4,702.00 $9,707.00 Total Optional items from Exhibit B (to be filled in by CLIENT) Software Model Months CPU Make Model Serial # Total Fees Grand Total IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives. CLIENT i I TIBURON] (Auihorized�Signature) (Authorized Signature) ;_Name: Name: Charles H. Bridges Jr. Title: J < ;•'<," z s% fyG;G el% l' ,. rat' z, Title Vice President& CFO Date: Date: April 20 2001 Palm Springs ESA Page 1 of 1 EXHIBIT B TO THE AGREEMENT FOR EXTENDED SERVICE SCHEDULE OF SERVICES AND CHARGES BASIC SERVICES $ 19,413.00 per year TIBURON will provide basic services as defined in the Statement of Work contained in Section 2 of the Extended Service Agreement for the software systems as defined in Exhibit A. Support for Computer Aided Dispatch, Message Switch and Corrections Management Systems is 24 hours per day, 7 days per week. Support for other products is from 8:00 a.m. to 5:30 p.m. Pacific Time, excluding weekends and normal TIBURON holidays, unless the "24/7" Service Option is selected. In all cases, call-out charges will apply as described below. "24/7" SERVICE OPTION $7,000 per year/per system (initial) Products not normally covered by 24-hour support may optionally be supported with 24-hour coverage (including TIBURON holidays). Applicable call-out charges continue to apply. If this option is not in force, technical support requests outside of covered hours are charged at technical service rates as defined below. VERSION MANAGEMENT PROGRAM Included/Not included New software versions are provided for CLIENT'S version of the RISC and HP CAD or the SS/2000 Police and Fire RMS Systems. New software versions typically include significant application changes and may require TIBURON's technical support to install. TIBURON services may be charged at the Technical Services Rate defined below, If agreed upon in writing, in advance. Significant application changes include but are not limited to system architecture, user interfaces, system externals, and database structure. Software releases include problem fixes and software enhancements. They do not typically require TIBURON's on site assistance to install. TIBURON installation and special tailoring, if required, may be charged at the Technical Service Rate defined below. New Products Additional TIBURON software systems, subsystems and TIBURON provided third-party products, such as hardware, and networking software may be acquired under this Agreement. TIBURON installation, special tailoring, license fees and third-party peripherals required shall be charged at the then current Technical Services Rate or as quoted by the third party. PREPAID TECHNICAL SUPPORT RESOURCE POOL $ (amount) (initials) A dollar amount is allocated to a Technical Support Resource Pool. The charges for Technical Support will always be calculated at the TIBURON Facility rate and will be subtracted from this dollar amount as incurred. Any unused portion of this account is carried over to the next contract year. Palm Springs ESA Page 1 of 3 GOLD CARD SERVICE OPTION Quote available on request A total support program is tailored for CLIENT and includes a schedule of on-site visits by TIBURON personnel for data base management, working with end users to identify and resolve problems and to apply agreed upon software changes, installation of new software products obtained through this Agreement, and a comprehensive training program. (If selected by CLIENT the terms of this option are defined in the Gold Card Service Schedule will be attached as Exhibit C and incorporated herein by reference.) OPERATIONS REVIEW Included Tiburon personnel will visit CLIENT site periodically and meet with management, operations and other user personnel to conduct an operations review of the systems and an analysis of the CLIENT's automation requirements. A report will be produced to include observations and recommendations regarding the CLIENT's use of the system. Working with the CLIENT, this review will be further documented in the form of a multi-year automation plan for the CLIENT. There will be no charge for this service if total annual maintenance exceeds $20,000. TIBURON USER GROUP MEMBERSHIP Included The following is paraphrased from the recently adopted Bylaws. Voting membership in the Tiburon User Group, as set forth herein, is included in the Basic Service. The quantity of voting members is based on the number of Tiburon products installed, with the appropriate software licenses, at the CLIENT. For purposes of establishing voting memberships, a product is defined as SS/2000 — Computer Aided Dispatch, Police Records Management, Fire Records Management, Correction Management System, and Mobile Data System. The Tiburon User Group Conference is held annually at a location to be determined. TECHNICAL SERVICE RATES Technical Services Rates shall be deducted from the Prepaid Technical Support Resource Pool, or if that option is not available, they shall be invoiced to CLIENT as incurred. 1. Technical Service Rates Technical support shall be charged at the following rates: AtTIBURON Facilities. $ 125 per staff hour At CLIENT Site: $ 150 per staff hour A minimum of four (4) hours per occurrence will be charged for work conducted at TIBURON facilities and a minimum of eight (8) hours at CLIENT site for Technical Services not covered under Basic Services or"24/7" Service Option as described previously. 2. Materials Travel and Per Diem Expenses When applicable, all special materials, plus travel and per diem expenses shall be charged to CLIENT at cost. 3. Call-Out Charges Systems not covered under 24/7 support, call-outs will be billed at $250 per call. After the first hour, the rate is $250 per hour with a two-hour minimum. If CLIENT'S systems are covered under the 24/7 support, the off-hour call-out fee is $50. Palm springs ESA Page 2'of 3 4. Remote Access All charges in this Agreement are predicated on CLIENT providing the required hardware, software, and operating environment for dial-in service. If CLIENT does not provide this support for dial-in service, the following additional charge will apply: $500 per month per system supported In addition, travel and per diem expenses for on-site support required due to lack of remote access will be charged as defined in Exhibit B, page 2, item 1. PAYMENT PROVISIONS Payments due under this Agreement shall be made based on invoices submitted in advance on an annual basis for Basic Services and Options or as incurred for miscellaneous expenses. TIBURON reserves the right to adjust the CLIENT's annual fee with a ninety (90) day advance written notice of adjustments. The adjustment will become effective on the anniversary date of this Agreement. The amount of any tax, license, or permit fees, but not including taxes on income, that may be imposed or levied upon this Agreement, the transaction, or the materials or services delivered hereto, shall be added to each invoice and paid by CLIENT in addition to the amounts shown above. CLIENT shall pay each invoice within thirty (30) days of receipt thereof. IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives. CLIENT / TIBURON /Authorized signature / Authorized signature A, e- Charles H Bridges Jr. Name Name /�1rT`a IL r ,ie` .ii5%/Lr> !/e >fy Vice President & CFO Title Title /i 9 April 20 2001 Date Date Palm Spends ESA Page 3 of 3 EXHIBIT A- Continued TO THE AGREEMENT FOR EXTENDED SERVICES SOFTWARE SUPPORT AND MAINTENANCE FEES CLIENT CONTACT-Jim Runge City of Palm Springs CLIENT# U213-01 200 South Civic Drive Palm Springs, CA 92262 Support and Maintenance provided to the CLIENT listed above shall be pursuant to the terms and conditions of the TIBURON Agreement for Extended Service dated April 20, 2001. This Exhibit A shall become part of said Agreement upon signature and shall be effective from July 1, 2001 to June 30, 2002. The Agreement applies only to the application software and software modules listed below and will be billed in advance annually, unless otherwise set forth in Exhibit B. Upon future renewals, there will be an additional charge to any CLIENT requiring semi-annual or quarterly invoices. Software Model Months CPU Make Model Serial# Total Fees RMS 12 $16,045.00 MCS 12 $28,696.00 Total $44,741,00 Optional items from Exhibit B (to be filled in by CLIENT) Software Model Months CPU Make Model Serial # Total Fees Grand Total IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives. CLIENT TIBURON a (Authorized Signa r-e) (Authorized Signature) Name: 61 PAIAL -tyl f 1 Name: Charles H. Bridges Jr. Title: Pl)i ')A.6 07� _2_ Title: Vice President & CFO Date: , � -c 1 Date: July 17 2001 Palm Springs Ex A Cont page 1 of 1 EXHIBIT A TO THE AGREEMENT FOR EXTENDED SERVICES SOFTWARE SUPPORT AND MAINTENANCE FEES CLIENT CONTACT—Dora Melanson City of Palm Springs CLIENT# U213-02 200 South Civic Drive Palm Springs, CA 92263 Support and Maintenance provided to the CLIENT listed above shall be pursuant to the terms and conditions of the TIBURON Agreement for Extended Service dated April 20, 2001 (the "Agreement"). The term of the Agreement shall commence on the effective date and shall continue until termination in accordance with the terms thereof. This exhibit sets forth the current annual maintenance fee for the software applications and software modules listed below. Upon payment of the amount set forth below, this Exhibit A shall be attached to and become part of the Agreement. Except as provided below, annual maintenance fees are payable in advance of each anniversary of the effective date of the Agreement. Tiburon reserves the right to increase the annual maintenance fee on an annual basis upon ninety (90) days prior written notice to the CLIENT, which adjustments shall become effective on the anniversary of the effective date of the Agreement. The annual maintenance fee will be adjusted as necessary to reflect changes in the software applications and software modules listed below or changes In the level of support provided under the Agreement. Such adjustments will be charged or credited as incurred on a pro rate basis and will be reflected in a new Exhibit A, which, upon delivery to the CLIENT, shall be attached to, and become part of, the Agreement. Payments for all technical services outside the scope of Basic Services and Options included in the CLIENT's annual maintenance fee shall be invoiced to the CLIENT as incurred. Ail such invoices shall be due and payable within thirty (30) days of CLIENT's receipt thereof Tiburon reserves the right to charge an administrative fee of 10% of the annual maintenance fees for semi- annual or quarterly invoices. Software Model Months CPU Make Start End Total Fees CAD 12 7/1/02 6/30/03 $ 11,037.00 CARS 2 7/1/02 6/30/03 $ 10,367,00 PRMS 12 7/1/02 6/30/03 $ 16,847.00 MCS 12 711/02 6/30/03 $ 30,131.00 Total $ 68,382.00 Failure to pay when due the annual maintenance fee, any adjustment thereto, any invoice or any other arnounts owing under the Agreement shall constitute a default under the Agreement and could result in the termination of support services under the Agreement, additional administrative charges for reinstating lapsed support services, as well as collection fees (including reasonable attorneys' fees and expenses). Palm Springs Ex A 2002 Page 1 of 1 EXHIBIT B TO THE AGREEMENT FOR EXTENDED SERVICE SCHEDULE OF SERVICES AND CHARGES Support and Maintenance provided to the CLIENT listed in Exhibit A shall be pursuant to the terms and conditions of the TIBURON Agreement for Extended Service dated April 20, 2001 (the"Agreement"). Upon CLIENT's payment of the amount set forth on Exhibit A to the Agreement, this Exhibit B shall be attached to, and become part of the Agreement. Any changes to the services options selected in this Exhibit B shall be reflected in a new Exhibit B which, upon payment of any additional amounts due, shall be attached to, and become part of, the Agreement. BASIC SERVICES TIBURON will provide basic services as defined in the Statement of Work contained in Section 2 of the Extended Service Agreement for the software systems as defined in Exhibit A. Support for Computer Aided Dispatch, Message Switch and Corrections Management Systems is 24 hours per day, 7 days per week. Support for other products is from 8:00 a.m. to 5:30 p.m. Pacific Time, excluding weekends and normal TIBURON holidays, unless the "24/7" Service Option is selected. In all cases, call-out charges will apply as described below. Tiburon personnel will visit CLIENT site periodically and meet with management, operations and other user personnel to conduct an operations review of the systems and an analysis of the CLIENT's automation requirements. A report will be produced to include observations and recommendations regarding the CLIENT's use of the system. Working with the CLIENT, this review will be further documented in the form of a multi-year automation plan for the CLIENT. There will be no charge for this service if total annual maintenance exceeds $20,000. The following is paraphrased from the recently adopted Bylaws. Voting membership in the Tiburon User Group, as set forth herein, is included in the Basic Service. The quantity of voting members is based on the number of Tiburon products installed, with the appropriate software licenses, at the CLIENT. For purposes of establishing voting memberships, a product is defined as Computer Aided Dispatch, Police Records Management, Fire Records Management, Correction Management System, and Mobile Data System. The Tiburon User Group Conference is held annually at a location to be determined. "24/7" SERVICE OPTION $7,000 per year/per system (initial) Products not normally covered by 24-hour support may optionally be supported with 24-hour coverage (including TIBURON holidays). Applicable call-out charges continue to apply. If this option is not in force, technical support requests outside of covered hours are charged at technical service rates as defined below. NEW PRODUCTS Additional TIBURON software systems, subsystems and TIBURON provided third-party products, such as hardware, and networking software may be acquired under this Agreement. TIBURON installation, special tailoring, license fees and third-party peripherals required shall be charged at the then current Technical Services Rate or as quoted by TIBURON or the third party. Palm springs Ex B 2002 Page 1 of 2 GOLD CARD SERVICE OPTION Quote available on request A total support program is tailored for CLIENT and includes a schedule of on-site visits by TIBURON personnel for data base management, working with end users to identify and resolve problems and to apply agreed upon software changes, installation of new software products obtained through this Agreement, and a comprehensive training program. (If selected by CLIENT the terms of this option are defined in the Gold Card Service Schedule and will be attached as Exhibit C and incorporated herein by reference.) TECHNICAL SERVICE RATES 1, Technical Service Rates Technical Services Rates shall be invoiced to CLIENT as incurred at the rates then in effect. A minimum of four (4) hours per occurrence will be charged for work conducted at TIBURON facilities and a minimum of eight (8) hours at CLIENT site for Technical Services not covered under Basic Services or"24/7" Service Option as described previously. 2. Materials Travel and Per Diem Expenses When applicable, all special materials, plus travel and per diem expenses shall be charged to CLIENT at cost. 3. Call-Out Charges Systems not covered under 24/7 support, call-outs will be billed at $250 per call. After the first hour, the rate is $250 per hour with a two-hour minimum. If CLIENT's systems are covered under the 24/7 support, the off-hour call-out fee is $50. 4. Remote Access All charges in this Agreement are predicated on CLIENT providing the required hardware, software, and operating environment for dial-in service If CLIENT does not provide this support for dial-in service, the following additional charge will apply. $500 per month per system supported In addition, travel and per diem expenses for on-site support required due to lack of remote access will be charged as defined in Exhibit B, page 2, item 2 Palm Springs Ex B 2002 Page 2 of 2 EXHIBIT A TO THE AGREEMENT FOR EXTENDED SERVICES SOFTWARE SUPPORT AND MAINTENANCE FEES CLIENT CONTACT—Dora Melanson City of Palm Springs CLIENT# U213-03 200 South Civic Drive Palm Springs, CA 92263 Support and Maintenance provided to the CLIENT listed above shall be pursuant to the terms and conditions of the TIBURON Agreement for Extended Service dated April 20, 2001 (the "Agreement'). The term of the Agreement shall commence on the effective date and shall continue until termination in accordance with the terms thereof. This exhibit sets forth the current annual maintenance fee for the software applications and software modules listed below. Upon payment of the amount set forth below, this Exhibit A shall be attached to and become part of the Agreement. Except as provided below, annual maintenance fees are payable in advance of each anniversary of the effective date of the Agreement. Tiburon reserves the right to increase the annual maintenance fee on an annual basis upon ninety (90) days prior written notice to the CLIENT, which adjustments shall becorne effective on the anniversary of the effective date of the Agreement. The annual maintenance fee will be adjusted as necessary to reflect changes in the software applications and software modules listed below or changes in the level of support provided under the Agreement. Such adjustments will be charged or credited as incurred on a pro rata basis and will be reflected in a new Exhibit A, which, upon delivery to the CLIENT, shall be attached to, and become part of, the Agreement. Payments for all technical services outside the scope of Basic Services and Options included in the CLIENT's annual maintenance fee shall be invoiced to the CLIENT as incurred. All such invoices shall be due and payable within thirty (30) days of CLIENT's receipt thereof. Tiburon reserves the right to charge an administrative fee of 10% of the annual maintenance fees for semi- annual or quarterly invoices. Software Model Months CPU Make Start End Total Fees CAD 12 7/1/03 6/30/04 $ 11,589.00 CARS 12 7/1/03 6/30/04 $ 10,885.00 PRMS 12 7/1/03 6/30104 $ 17,689.00 MCS 12 7/1/03 6/30/04 $ 31,638.00 Total $ 71,801.00 Failure to pay when due the annual maintenance fee, any adjustment thereto, any invoice or any other amounts owing under the Agreement shall constitute a default under the Agreement and could result in the termination of support services under the Agreement, additional administrative charges for reinstating lapsed support services, as well as collection fees (including reasonable attorneys'fees and expenses). Palm springs Ex A 2003 Page 1 of 1 EXHIBIT B TO THE AGREEMENT FOR EXTENDED SERVICE SCHEDULE OF SERVICES AND CHARGES Support and Maintenance provided to the CLIENT listed in Exhibit A shall be pursuant to the terms and conditions of the TIBURON Agreement for Extended Service dated April 20, 2001 (the "Agreement"). Upon CLIENT's payment of the amount set forth on Exhibit A to the Agreement, this Exhibit B shall be attached to, and become part of the Agreement. Any changes to the services options selected in this Exhibit B shall be reflected in a new Exhibit B which, upon payment of any additional amounts due, shall be attached to, and become part of, the Agreement. BASIC SERVICES TIBURON will provide basic services as d efined in the Statement of Work contained in Section 2 of the Extended Service Agreement for the software systems as defined in Exhibit A. Support for Computer Aided Dispatch, Message Switch and Corrections Management Systems is 24 hours per day, 7 days per week. Support for other products is from 8:00 a.m. to 5:30 p.m. Pacific Time, excluding weekends and normal TIBURON holidays, unless the "24/7" Service Option is selected. In all cases, call-out charges will apply as described below. Tiburon personnel will visit CLIENT site periodically and meet with management, operations and other user personnel to conduct an operations review of the systems and an analysis of the CLIENT's automation requirements. A report will be produced to include observations and recommendations regarding the CLIENT's use of the system. Working with the CLIENT, this review will be further documented in the form of a multi-year automation plan for the CLIENT. There will be no charge for this service if total annual maintenance exceeds $20,000. The following is paraphrased from the recently adopted Bylaws. Voting membership in the Tiburon User Group, as set forth herein, is included in the Basic Service. The quantity of voting members is based on the number of Tiburon products installed, with the appropriate software licenses, at the CLIENT. For purposes of establishing voting memberships, a product is defined as Computer Aided Dispatch, Police Records Management, Fire Records Management, Correction Management System, and Mobile Data System. The Tiburon User Group Conference is held annually at a location to be determined. "24/7" SERVICE OPTION $7,000 per year/per system (initial) Products not normally covered by 24-hour support may optionally be supported with 24-hour coverage (including TIBURON holidays). Applicable call-out charges continue to apply If this option is not in force, technical support requests outside of covered hours are charged at technical service rates as defined below. NEW PRODUCTS Additional TIBURON software systems, subsystems and TIBURON provided third-party products, such as hardware, and networking software may be acquired under this Agreement. TIBURON installation, special tailoring, license fees and third-party peripherals required shall be charged at the then current Technical Services Rate or as quoted by TIBURON or the third party Palm Springs Ex B 2003 Page 1 of 2 GOLD CARD SERVICE OPTION Quote available on request A total support program is tailored for CLIENT and includes a schedule of on-site visits by TIBURON personnel for data base management, working with end users to identify and resolve problems and to apply agreed upon software changes, installation of new software products obtained through this Agreement, and a comprehensive training program. (If selected by CLIENT the terms of this option are defined in the Gold Card Service Schedule and will be attached as Exhibit C and incorporated herein by reference.) TECHNICAL SERVICE RATES 1. Technical Service Rates Technical Services Rates shall be invoiced to CLIENT as incurred at the rates then in effect. A minimum of four (4) hours per occurrence will be charged for work conducted at TIBURON facilities and a minimum of eight (8) hours at CLIENT site for Technical Services not covered under Basic Services or "24/7" Service Option as described previously. 2. Materials Travel and Per Diem Expenses When applicable, all special materials, plus travel and per diem expenses shall be charged to CLIENT at cost. 3. Call-Out Charges Systems not covered under 24/7 support, call-cuts will be billed at $250 per call. After the first hour, the rate is $250 per hour with a two-hour minimum. If CLIENT's systems are covered under the 24/7 support, the off-hour call-out fee is $50. 4. Remote Access All charges in this Agreement are predicated on CLIENT providing the required hardware, software, and operating environment for dial-in service. If CLIENT does not provide this support for dial-in service, the following additional charge will apply: $500 per month per system supported In addition, travel and per diem expenses for on-site support required due to lack of remote access will be charged as defined in Exhibit B, page 2, item 2 Palm Springs Ex 3 2003 Page 2 of 2