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HomeMy WebLinkAboutJDI DATA CORPORATIONINSURANCE ON FILE WORK MAY PROCEED N-2022-138 UNTIL INSURANCE EXPIRES 01. 31 • ZeZ3 ., CLERK OF COUNCIL DATE: MAY 1 9 2022 CTRAX SOFTWARE LICENSE AGREEMENT 0'. µRCSt,et This agreement, effective as of the date signed by both parties, hereinafter referred to as "effective date," is made and entered into between, JDI Data Corporation, whose address is 100 W. Cypress Creek Rd., Suite 1052, Ft. Lauderdale, FL 33309, hereinafter referred to as "JDI", and City of Santa Ana, a California municipal corporation and Charter City located in Santa Ana, California, hereinafter referred to as "Licensee." JDI and Licensee may collectively be referred to as "parties" and individually referred to as "party." SECTION ONE GRANT OF LICENSE AND LEASE FOR USERS a. JDI grants Licensee a nontransferable, nonexclusive, limited end user license and lease to use the Software identified herein, subject to the conditions of this agreement. b. Legal title to the Software and Software documentation provided under this agreement shall remain in JDI's possession as its sole property subject to Licensee's rights specified in this agreement. c. The Software and Software documentation are provided with restricted use. Use, duplication, or disclosure by the Licensee is subject to restrictions as set forth by JDI, as applicable. SECTION TWO USE OF SYSTEM a. The parties agree that the Software described or identified herein is proprietary to JDI. Licensee agrees that the Software and all related data, whether oral or written, and furnished by JDI under this agreement constitute a valuable asset and trade secret of JDI and are provided for Licensee's exclusive use for the purposes of this agreement and must be held in confidence. b. This agreement shall be limited to the use of the Licensee for purposes of certificate of insurance management for its organization and clients only. Any and all other uses which the Licensee desires to make of said Software must be approved in writing by JDI. Any analysis or programming cost shall be at an additional fee to be negotiated by and between the parties hereto. c. Licensee covenants and agrees not to duplicate or disclose any information provided relative to the Software in whole or in part, or for the use of others, and to protect such information in the same fashion as it protects its own proprietary or confidential information. Licensee will not remove any designation mark from any supplied materials that identifies such materials as belonging to or developed by JDI. SECTION THREE TERM This agreement is for a one (1) year period. Associated fees are usage -based as described in Section Four. SECTION FOUR TERMS OF PAYMENT a. Licensee will pay JDI a Compliance Record Credit of $10.00 per Active Compliance Record for each period of 365 days the Compliance Record is active. b. An Active Compliance Record is defined as a unique combination of an Insured with a Risk Profile where the compliance process has been activated. c. The Compliance Record Credit will apply to all actions (automated or otherwise) and document uploads for a period of 365 days from the date the Compliance Record was activated. d. If the Compliance Record remains active 366 days from the date it was activated, a cost of $10.00 will be applied that will cover the next 365 days of activity. This process will repeat as long as the Compliance Record remains active. Licensee will pay JDI $10 each for 900 Compliance Record Credits upon execution of this agreement. These credits will be applied as the Licensee creates active Compliance Records. f. Licensee will pay JDi $750 for onboarding for the first year of this License Agreement. g. Licensee will be invoiced monthly. The invoice will show the number of credits remaining. No additional fees will be due until the prepaid credits listed in section 4e have been exhausted. h. Unless otherwise stated, all prices are exclusive of state and local use, sale, and similar taxes. Any applicable taxes will be paid by Licensee. Taxes will appear as separate additional items on JDI's invoices unless Licensee provides JDI with a valid tax exemption certificate acceptable to the taxing authorities. i. Licensee will be provided with unlimited user licenses during the duration of this agreement. j. The compensation approved for the term of this Agreement will not exceed twelve thousand ($12,000.00) dollars, SECTION FIVE PROPRIETARY RIGHTS WARRANTY AND INDEMNITY JDI shall defend or settle, at its own expense, any claim, cause of action or proceeding brought against Licensee that is based on a claim that the use of the Software infringes or violates any patent, copyright, trade secret or other proprietary right. JDI shall indemnify and hold Licensee harmless against all damages, judgments, and attorneys' fees arising out of the foregoing, provided that Licensee gives JDI prompt written notice of such claim. If a claim is made that the use of the Software infringes or violates any patent, copyright, trade secret or other proprietary right, JDI shall either procure for Licensee the right to continue using the Software, modify the Software to make it non -infringing but continue to meet the specifications therefore, or replace the Software with non -infringing or violating software of like functionality that meets the specifications for the Software. SECTION SIX CONFIDENTIALITY a. The parties acknowledge that each has read and considered the provisions of this Agreement, which same are necessary for the reasonable and proper protection of each other's contacts and business relationships, and that such covenants are reasonable in respect to the subject matter and length of time. b. JDI agrees to hold confidential and not disclose, and will cause its employees, officers, directors, affiliates and any persons it shall cause to assist it in providing services related to JDI's work to hold confidential and not disclose, the contents of this agreement or confidential information acquired as a result of this agreement except to the extent that such disclosure (a) has been consented to by the Licensee in writing or (b) is required by law, regulation, supervisory authority or other applicable judicial or governmental order. Any recipient of that material shall exercise reasonable and appropriate care with regard to the storage, custody, and/or use of that material in order to ensure that its confidential nature is maintained. c. The parties acknowledge that damages at law would not be measurable, or may not provide an adequate remedy for a breach of this agreement, and therefore, the parties consent to the entry by any court of competent jurisdiction (subject to the terms set forth herein below) of an order enjoining either from violating the terms hereof. The parties further acknowledge that such relief shall Include the entry of a temporary restraining order until a hearing on the merits of the breach of the agreement can be held, and that neither party is entitled to notice of the application for such restraining order. SECTION SEVEN WARRANTY a. JDI warrants that the Software will perform in accordance with the user's manual for the version of the Software issued to the Licensee hereunder. b. JDI warrants that there is nothing in the Software program that will prevent or block Licensee from freely downloading or transferring data to another software system in the event Licensee elects to discontinue the use of the Software. c. JDI does not warrant that the Software will be compatible with any other software system Licensee may elect to use, JDI, at its expense, will correct any defects in the Software which do not constitute new development. e. JDI shall be relieved of any and all obligations with respect to paragraph a. of this section for any portions of the Software that are revised, changed, modified, or maintained by anyone other than JDI. JDI makes no other warranties, express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. SECTION EIGHT INSURANCE JDI shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with products and materials supplied to the City. The cost of such insurance shall be borne by the JDI. a. Minimum scope and coverage- Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 00 01) covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. b. If JDI maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by JDI. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. c. Self -Insured Retentions- Self -insured retentions must be declared to and approved by the City. The City may require JDI to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. d. Other Insurance Provisions- The insurance policies are to contain, or be endorsed to contain, the following provisions: 1) Additional Insured Status- The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the JDI including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to JDI's insurance at least as broad as 180 Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used). 2) Primary Coverage- For any claims related to this contract, JDI's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers, Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the JDI's insurance and shall not contribute with it. 3) Notice of Cancellation- Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. 4) Acceptability of Insurers- Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City. 5) Verification of Coverage- JDI shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive JDI's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. 6) Waiver of Subrogation- JDI hereby grants to City a waiver of any right to subrogation which any insurer of JDI may acquire against the City by virtue of the payment of any loss under such insurance. JDI agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. 7) Special Risks or Circumstances- City reserves the right to modify these requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. SECTION NINE TERMINATION a. JDI will provide a backup of any data stored in a CSV file format. b. If assistance is required with migrating data to another system, this will be a billable event and will be billed on a time and materials basis using JDI published billing rate. SECTION TEN DEFAULT Either party has the right to terminate this agreement and any license granted upon ninety (90) days written notice to the other party for no cause. On any such termination by JDI, Licensee agrees to pay any sums due to JDI under section 4 of this agreement and for any work done at Licensee's expense, or for any unauthorized usage. SECTION ELEVEN TECHNOLOGICAL ADVANCES a. Licensee agrees that JDI shall have the right to free and unencumbered use, sale, or license of any technological advancements developed or acquired by JDI in the performance of any services rendered by JDI to the Licensee in connection with this agreement. b. JDI agrees that Licensee will have an unencumbered right to utilize improvements made on the Software. SECTION TWELVE GOVERNING LAW This agreement shall be construed and the legal relation between the parties determined in accordance with the laws of the State of California. SECTION THIRTEEN WAIVER The waiver, modification, or failure to insist by JDI on any conditions shall not void, waive, or modify any of the other terms or conditions nor be construed as a waiver or relinquishment of JDI's right to performance of any such term or terms. SECTION FOURTEEN ASSIGNMENT This agreement shall be binding on and shall inure solely to the benefit of the parties and their respective successors, and permitted assignees, and not for the benefit of any other person or legal entity. Licensee, however, shall not assign this agreement or any rights or obligations under the agreement without first obtaining the prior written consent of JDI. Such consent shall -not be unreasonably withheld. M SECTION FIFTEEN RELATIONSHIP OF PARTIES Each party is an independent contractor and not an agent or partner of, or joint venturer with, the other party for any purpose, and neither party by virtue of this agreement shall have any right, power, or authority to act or create any obligation, expressed or implied, on behalf of the other party. SECTION SIXTEEN DELAYS Neither party shall be liable or deemed in default for any delay or failure in performance of this agreement resulting directly or indirectly from any cause completely, solely, and exclusively beyond the control of that party. SECTION SEVENTEEN SEVERABILITY If any provision or part of this agreement shall be declared illegal, void, or unenforceable, the remaining provisions shall continue in full force and effect. SECTION EIGHTEEN LIMITATION ON ACTION Any action under this agreement, regardless of the form, whether in agreement, negligence, or tort, must: a. Be brought within two (2) years after such cause of action has arisen; and b. Have been preceded by written notice to the other party, thirty (30) days prior to the party's intent to sue, if the breach of this agreement is not corrected; and c. Said written notice must be by certified mail and regular mail. SECTION NINETEEN ENTIRE AGREEMENT AND ACKNOWLEDGMENT The parties acknowledge that this agreement has been read and understood, represents the entire agreement and understanding of the parties, and supersedes all prior agreements, communications, or understandings, whether oral or written. SECTION TWENTY NOTICES All notices required by or related to this agreement shall be in writing and sent to the parties at the addresses below by any means that will require a written acknowledgment of receipt by the receiving party. SECTION TWENTY-ONE DISCRIMINATION JDI shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this License Agreement. JDI affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. SECTION HEADINGS The section headings contained in this agreement are inserted only as a matter of convenience and reference and in no way define, limit, or describe the scope or intent of this agreement and do not in anyway affect its provisions. IN WITNESS WHEREOF, each party has caused this agreement to be executed by its authorized representative on the date(s) indicated below. [Signatures are on the next page] 11 City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Kristine Ridge City Manager By: ATTEST: Gomez of Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney 14) Bynt q&ra 1 �1PMAMl Laura A. Rossini Chief Assistant City Attorney RECOMMENDED FOR APPROVAL: J on Motsick xecutive Director Human Resources Agency 10 JDI Data Corporation 100 W. Cypress Creek Rd. Suite 1052 Ft. Lauderdale, FL 33309 Matthew Francis Director of Business Development Mat�l2W �?'Gf%/7i% By: Matthew hands(May 13,202211:10 EDT) May 1�, 2022 Digitally signed by Samantha Samantha M. A��q b® g210°006 DAT51412022YYY) CERTIFICATE OF LIABILITY INSURAI�itlE°,bert16 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Cothrom Risk & Insurance Services 440 N Andrews Ave Fort Lauderdale FL 33301 CONTAC NAME: PNONE g54-368-2191 ac No: EMAIL AODREss: certificates oothrom.com INSURERS AFFORDING COVERAGE NAIL# INSURER A: ACE Property And Casualty Insurance Company 20699 INSURED JDIDATA-01 JDI Data Corporation 100 W Cypress Creek Rd Ste 1052 INSURERS: Chubb Indemnity Insurance Company 12777 INSURER C : Ace American Insurance Company 22667 INSURER D : Federal Insurance Company 20281 Fort Lauderdale FL 33309 INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: 1819351635 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDLSUBR INSD MID POLICYNUMBER POLICY EFF MM/DD POLICY EXP MM/OD/YYYY LIMITS A X COMMERCIAL GENERAL LIABILITY � OCCUR Y Y D52792757 1/31/2022 1/31/2023 EACH OCCURRENCE $2,000,000 MA ESTO RENTED -bTCLAIMS-MADE PREMISES (Ea occurrence) $1,000,000 MED EXP (Any one person) $10,000 PERSONAL &ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY JECT FX7 LOC GENERALAGGREGATE $4,000,000 PRODUCTS - COMP/OP AGG $4,000,000 $ OTHER: A AUTOMOSILELMILITY D52792757 1/31/2022 1/31/2023 COMBINED SINGLE LIMIT Ea stormt $2,000,000 BODILY INJURY (Per person) $ ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY d Per accident) ( ) $ X HIRED X NON -OWNED AUTOS ONLY AUTOS ONLY PROPERTYDAMAGE Per accident $ UMBRELLALIAB OCCUR occ,uR-MADE EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAR DED RETENTION$ IS B WORKERS COMPENSATION AND EMPLOYERS'LWBILITY YIN 2271761180 1/31/2022 1/31/2023 1 PER EORH- E.L. EACHACCIDENT $1,000,000 ANVPROPRIETORIPARTNERIEXECUTIVE ❑ OFFICERIMEMBEREXCLUDED4 NIA E.L. DISEASE - EA EMPLOYEE $1,000,000 (Mandatory in NH) If yes, interim under DESCRIPnON OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $1,000,000 C D C Emors and Omissions Cnme[Hducia%ry liability Network Secudty(Cyber) D52792836 82509628 D52792836 1/31/2022 1/31/2022 1/31/2022 1/31/2023 1/31/2023 1/31/2023 E&O Limit Crime&ED Limit Cyber Limit 3,000,000 1,000,000 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Santa Ana, officers, agents, employees, and volunteers are included as an additional insured under the general liability policy per form BOP-47675a (0716) pursuant to written agreement, subject to the terms and conditions of the policy. The general liability policy is primary and any insurance carried by City shall be excess and noncontributory. A waiver of subrogation is provided in favor of the City of Santa Ana under the general liability per form BOP-47675a (0716) when required by written agreement, subject to the terms and conditions of the policy. Certificate Holder is an additional insured under the auto liability policy subject to the terms and conditions of the policy. City of Santa Ana 20 Civic Center Plaza P.O Box 1988 Santa Ana CA 92702 SHOULD ANY OF THE ABOVE DESCRIBEC THE EXPIRATION DATE THEREOF, N ACCORDANCE WITH THE POLICY PROVISI AUTH°RIZE°REPRESENT ah :1 REVIEWED•• APPR bhlrin ( U01W JA�FAMF% rMh �'.. ® Risk ManagementSupervisor 11988.2015 ACORD CORPORATION. reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD If this is an audit policy, then, subject to your full cooperation with us or our agent in securing the necessary data for audit, we will return any premium refund due within 90 days of the date cancellation takes effect. If our audit is not completed within this time limitation, then we shall accept your own audit, and any premium refund due shall be mailed within 10 working days of receipt of your audit. The cancellation will be effective even if we have not made or offered a refund. 3. The following is added to Paragraph A. Cancellation: 7. Cancellation For Policies In Effect For More Than 90 Days a. If this Policy has been in effect for more than 90 days, we may cancel this Policy only for one or more of the following reasons: (1) Nonpayment of premium; (2) The Policy was obtained by a material misstatement; (3) In the event of failure to comply, within 90 days after the effective date of coverage, with underwriting requirements established by us before the effective date of coverage; (4) There has been a substantial change in the risk covered by the Policy; (5) The cancellation is for all insureds under such policies for a given class of insureds; (6) On the basis of property insurance claims that are the result of an act of God, if we can demonstrate, by claims frequency or otherwise, that you have failed to take action reasonably necessary as requested by us to prevent recurrence of damage to the insured property; (7) On the basis of a single property insurance claim which is the result of water damage, if we can demonstrate that you have failed to take action reasonably requested by us to prevent a future similar occurrence of damage to the insured property; or (8) The cancellation of some or all of our policies is necessary to protect the best interests of the public or policyholders and such cancellation is approved by the Florida Office of Insurance Regulation. b. If we cancel this Policy for any of these reasons, we will mail or deliver to the first Named Insured written notice of cancellation, accompanied by the specific reasons for cancellation, at least: (1) 10 days before the effective date of cancellation if cancellation is for nonpayment of premium; or (2) 45 days before the effective date of cancellation if: (a) Cancellation is for one or more of the reasons stated in Paragraphs 7.a.(2) through 7.a.(7) above and this Policy does not cover a residential structure or its contents; or (b) Cancellation is based on the reason stated in Paragraph 7.a.(8) above. (3) 120 days before the effective date of cancellation if: (a) Cancellation is for one or more of the reasons stated in Paragraphs 7.a.(2) through 7.a.(7) above; and (b) This Policy covers a residential structure or its contents. c. If this Policy has been in effect for more than 90 days and covers a residential structure or its contents, we may not cancel this Policy based on credit information available in public records. 4. The following paragraphs are added: M. Nonrenewal 1. If we decide not to renew this Policy, we will mail or deliver to the first Named Insured written notice of nonrenewal, accompanied by the specific reason for nonrenewal, at least: a. 45 days prior to the expiration of the Policy if this Policy does not cover a residential structure or its contents, or if nonrene av a is for the reason stated in Paragl`i b. 120 days pri the Policy if residential stn s XWMVWVWWAuWWM y, ReAeiVE0&APmv®Br. Rkk 5A Management Sup ervism Page 4 of 6 © Insurance Services Office, Inc., 2015 BP 03 03 03 16 NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL Contractor JDI Corporation Name: Project N-2022-138 Number: Project CTRAX Software License Agreement Name: The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the insurance requirements. No further action is required at this time. The compliant coverage(s) are: POLICY EXPIRATION TYPE OF INSURANCE COI DATE FILE NAME NUMBER DATE GENERAL LIABILITY D52792757 01/31/2024 01/30/2023 Certificate.pdf Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 2/6/2023 3:40 PM