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HomeMy WebLinkAboutPOWER DMS - 2016INSURANCE N91 ON FILE WORK MAY W1 1 PROCEED CLERK OF COUNCIL BATE: SOFTWARE AND SUPPORT AGREEMENT A- 2016 -119 THIS SOF'T'WARE AND SUPPORT AGREEMENT, made and entered into this 17th day of May, 2016 by and between Power DMS (hereinafter "Contractor "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City desires to retain a Contractor having special skill and knowledge in the field of providing law enforcement training management software. B, Contractor represents that Contractor is able and willing to provide such services to the City. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide software and support as needed for the Power DMS service as outlined in the attached Exhibits "A" and "B." City's use of the PowerDMS service shall be subject to the provisions set forth in Exhibit "A ", 2. COMPENSATION A. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. Specifically the City will Pay 1. Year 1; $13,006 for the software subscription and $7,800 for training on operation of the software; 2. Year 2: $13,398 for the software subscription; 3. Year 3: $13, 797 for the software subscription; and 4. Contingency: $5,000 for unanticipated expenses at the sole discretion of the City. B. The total sum to be expended under this Agreement shall not exceed $53,00 1.00 over the term of this Agreement. This includes a $5,000 contingency for unanticipated expenses as the sole discretion of the City. C. Payment by City shall be made upon receipt of proper invoice evidencing the subscription to be provided, subject to City accounting procedures. This term of this Agreement shall be for a three year (3) year period commencing on May 17, 2016 and terminating on May 16, 2019, unless terminated earlier in accordance with Section 12 of this Agreement. 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Cyber Liability insurance in the amount of $1,000,000 per occurrence. b. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. 2. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. 3. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. c. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Contractor's right to be paid for its time and materials expended prior to notification of termination. 6. INDEMNIFICATION; DISCLAIMERS; LIMITATION OF LIABILITY A. Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Contractors, special counsel, and representatives from liability arising from any third party claim (a "Claim ") for personal injury, damages, just compensation, restitution, judicial or equitable relief, to the extent the same are directly and proximately caused by Contractor's breach of this Agreement or the gross negligence or willful misconduct of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement. The Contractor further agrees to pay all reasonable costs for the defense of the City, including fees and costs for legal counsel to the extent attributable to any Claim. City may make all reasonable decisions with respect to its representation in any legal proceeding; provided, however, that Contractor shall not be responsible for the fees and costs for separate legal counsel retained by the City regarding any Claim. The indemnification obligation set forth in this paragraph shall be subject to the limitations set forth in this Section 6. B. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CONTRACTOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THE CONTRACTOR TECHNOLOGY IS PROVIDED TO CITY ON AN "AS IS" AND "AS AVAILABLE" BASIS. CITY IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE SUBSCRIPTION SERVICES ARE SUITABLE FOR CITY'S PURPOSES, CONTRACTOR DOES NOT WARRANT THAT USE OF THE CONTRACTOR TECHNOLOGY WILL BE ERROR -FREE OR UNINTERRUPTED. CONTRACTOR MAKES NO WARRANTY THAT THE CONTRACTOR TECHNOLOGY COMPLIES WITH THE LAWS OF ANY JURISDICTION OUTSIDE THE UNITED STATES. C. Except with regard to liability for the indemnity obligations under this Section 6 with respect to indemnification claims arising from the breach by Contractor of third party intellectual rights or City's breach of Section 1 of Exhibit A, in no event will either party's aggregate liability exceed the Subscription Fees required to be paid by the City to Contractor during the twelve (12) month period ending on the date on which the relevant claim is submitted. In no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage). D. If the Subscription Services are impacted by any incident resulting in data loss, Contractor will take commercially reasonable steps to restore the City Content from the most recent existing, unaffected backup available. Contractor makes no representations or warranties regarding its ability to recover any City Content lost, and City acknowledges that it is responsible for conducting its own regular backups of City Content through the Subscription Services. E. Third party services or content might be accessible through the Contractor Services. Contractor is not responsible for, and makes no warranty respecting, any such services or content. 7. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Contractor covenants that, to the best of its knowledge, it presently has no interests and shall not acquire any interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. No persons having such interest shall be knowingly employed by or associated with Contractor. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax(714)647 -6956 With courtesy copies to: And Chief of Police, Santa Ana Police Department City of Santa Ana 60 Civic Center Plaza (M -97) P.O. Box 1988 Santa Ana, California 92702 Fax(714)245 -8007 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax(714)647 -6515 To Contractor: Power DMS P.O. Box 2468 Orlando, Florida 32802 Fax(407)264 -6144 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, any communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terns and conditions hereof, shall not bind or obligate Contractor or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed (a) to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City, or (b) to prevent the assignment of this Agreement by Contractor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Contractor's assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. 12. TERMINATION This Agreement may be terminated by the City with thirty (30) days written notice. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination. Either party may terminate this Agreement at any time in the event that the other party (i) breaches any material tern of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof, or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law, or is wound up or liquidated, voluntarily or otherwise. 13. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS Contractor shall carry out all services pursuant to this Agreement in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: do,,, -'r 01�'h'tf1_� Laura A. Rossini Senior Assistant City Attorney CITY pOF SANTA DAVID CAVAZOS City Manager CONTRACTOR POWER DMS RECOMMENDED FOR APPROVAL: CARLOSROJAS Chief of Police [Power DMS signature pages] EXHIBIT A Service Description See attached Statement of Work. Provisions Applicable to City's Use of Software: Contractor provides services ( "Contractor Services ") using Contractor's software ( "Contractor Software ") and access - controlled website ( "Contractor Site ") which City desires to use for the management of City's documents, records and data (collectively, "City Content "); and City desires to obtain a subscription ( "City Subscription ") for certain Contractor Services in accordance with the provisions of this Agreement 11 Use of Subscription Services. a) Subject to the terns and conditions of this Agreement, Contractor grants City and City's designated users ( "Users ") the nonexclusive right to use the Subscription Services during the Subscription Term. b) Neither City nor any User will (i) modify, translate, or create derivative works of the Contractor Services, Contractor Software or Contractor Site (collectively, "Contractor Technology "); (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Contractor Softwards source code or any other technology used by Contractor to provide the Contractor Service; (iii) sublicense, resell or distribute any Contractor Technology in any manner or form; (iv) share login credentials for the Subscription Services with other parties; (v) "frame" or "mirror" the Contractor Services or Contractor Site; or (vi) use or permit any User to use the Contractor Technology from any location outside of the United States. c) City is responsible for maintaining the security and confidentiality of all User usemames and passwords and for all activities that occur under City's User accounts. City agrees to notify Contractor immediately of any unauthorized use of any username or password or account or other known or suspected breach of security. d) City will have sole responsibility, and Contractor assumes no responsibility, for the City Content. Without limiting the foregoing, City will not submit, or permit any of its Users to submit, to the Contractor Services any City Content or other materials (collectively "Restricted Materials ") that are • Illegal or illegally created or obtained; • false or misleading; • defamatory; • indecent or obscene; • threatening; • infringing of any third party rights; • invasive of personal privacy; • subject to mandatory public disclosure by Contractor except in accordance with City's written instructions to Contractor; • protected by the Health Insurance Portability Accountability Act (HIPAA); • Restricted Data, as that term is defined in Title 28, Part 20, Code of Federal Regulations; or • Personally Identifiable Information (PII), other than the PII respecting each User required for such User to be able to log into and utilize the Subscription Services. e) City shall comply with all applicable laws in using the Contractor Services. f) Contractor may, from time to time, adopt and update rules for permitted and appropriate use of the Contractor Services. Upon delivery to City, or publication on the Contractor Site, of any such rules or updates, any further use of the Subscription Services by City and City's Users shall be subject to such rules. g) Contractor reserves the right, in addition to any other remedies available to it, to suspend any User account or User activity if Contractor believes such account or activity (i) is the source of disruption of the Contractor Services or harm to the systems or infrastructure of Contractor or any third party, (ii) is being used to conduct illegal activity or activity that could potentially expose Contractor to legal liability, or (iii) has been used to submit Restricted Materials to the Contractor Services, or (iv) otherwise violates the terms and conditions set forth in this Agreement or any rules adopted by Contractor with respect to the use of the Contractor Services. h) The Contractor Services are subject to modification from time to time at Contractor's sole discretion; provided that any such modification will not degrade the functionality of the Subscription Services in any material manner, except as required by applicable law. Contractor will use reasonable efforts to give City prior written notice of any material modification. 2. City Content. a) As between City and Contractor, all City Content submitted to the Contractor Services by City or by City's Users will remain the sole property of City or such Users. Subject to the terms and conditions of this Agreement, City grants to Contractor a non - exclusive license to use, copy, store, transmit and display City Content to the extent reasonably necessary (i) to provide, maintain and improve the Contractor Services and (ii) to confirm compliance with the terns of this Agreement. b) During the Term of this Agreement, City may extract City Content at any time through the Subscription Services. For a period of ninety (90) days after the end of the Tenn, City Content will be furnished to City upon written request. Thereafter, Contractor shall have no further obligation to retain any City Content. c) Except as authorized by City (in this Agreement or otherwise) or required under applicable law, Contractor shall not disclose any City Content to anyone other than Contractor's 10 employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform Contractor's obligations hereunder. The confidentiality obligations set forth in this paragraph (i) will survive for one (1) year after the termination or expiration of this Agreement, and (ii) do not apply to City Content which is (A) already in the possession of Contractor and not subject to a confidentiality obligation to City; (B) independently developed by Contractor; (C) publicly disclosed through no fault of Contractor; or (D) rightfiilly received by Contractor from a third party that is not under any obligation to keep such information confidential. 3. Ownership of Contractor Technology. Contractor retains all rights in the Contractor Technology, including, without limitation, any intellectual property developed by Contractor during the course of its performance of any services for City. Except as expressly provided in this Agreement, no license or other right is granted to City or its Users in the Contractor Technology. The Contractor name, the Contractor logo, and the product names associated with the Contractor Technology are trademarks of Contractor or third parties, and they may not be used without Contractor's prior written consent. EXHIBIT B- STATEMENT OF WORK t2 Pl )werW^1f9fl$." t890.P19Slud (407.310,0113 wsrw.powenLns cum 101S.GarlindAso, Ste 300 Odcmdo, F1.'. 12801 Customer: Santa Ana Police Depanment lCA) Sales Rep, Jeff Saunders Joe Marty Address: 60 Civic Cantor Plaza Valld Until: 05/20/1016 Subscription Start Date: 05/17 /2016 Bnitint Terrin 12 Billing Phone: Fax: New Subscription Quote Billing Method: Email Notes: Three year agreanem with payment due each year at start of Payment Medved; Check term; Payment Ternn Net 30 Year one total cost (subscription and services); $-',4806 (invoiced upon PO Nnmher: execution ofaontract) SDNIS -AS Year two trial cost (subscription only w 3%): $13,3[98.( invoiced for Recurring start aI'year two of subcnproton User Year theta total cost (subscription to vx.): $ I3,797 (invoiced far $13,398.00 start or'year three of subscription) Annual PiovtrDNIS .corn hosted subscription fee Recurrng Produor t' Tvne oty Llidt Pries Tatol Price S`DNtS -AS Annual PowerDMS.eon heated subaenpdon Pee Recurring 70p Ustr $18.5$ $07,006.00 SDNIS -AS Annual PPwo[DNIS -cam hosted subscription fee Recurring 700 User $19 -14 $13,398.00 SDNIS -AS Annual PiovtrDNIS .corn hosted subscription fee Recurrng 700 User $19.71 $13,797.00 400 documents lmaled; Up to 24 hours of remom training; Two days ofonsac training 116 PREMIUM hours)',project management assistance, Access One =Time 1 $7,80000 $7,500.00 to Par self paced learning portal, live training webinars, training tutorials, and gmcksheets- Tohtl _ 548,001.00 Paystura Terms All invoice kona I haranmlar arc duo- upon me invoice d,m date. the tkes set tbnh in this Eoemtion Shoo are aselieive of all applimbie taxes, levies, or dtows imposed by taxiing authorities and Casmomr shall be responsilde for payment of oey such applicable roses, Im ias. or dn, ins. All payment oWoatrra r a , non - cancellable, and all Cats pat,[ am nor,refbndable. Terms & Conditions QnlesSO[heh¢Ih2 a$[CC41 in vanity by PP W2rDdd8 aid Lic seree, fitly Quotation Sneer and the sar, ims to he banisled ptnsuenl to IIIIS Quotation Skit am ,abmv[to tho aaunS via cnndlti.au sat fault hvvrx/Ai�_Tire Grffoane Dow (a3 doline d athe Odin tow, .,so w odoons a tdtl5 Sanware ns a Sco,ia -A rodrasnq shall be tic date sat fnnt bolmu. Santa Ana Pnticc ptrtnn r sicnal'ure: C --{/�j F Printed dame: C✓" � LId .S I- - V �° 73 "Cities C ®F /::10 %6 -- Dare.._ 6/A-, 'IT IL INFORMAL ION AND PRICING CONTAINED IN THIS QUOTATION SIKEPT IS STRICTLY CONFIDENTIAL CERTIFICATE OF LIABILITY INSURANCE C10010n a YY) 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 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(s1. PRODUCER iylant - Orlando ?50 International Pkwy, Ste 330 .ake Mary FL 32746 INSURED POWEDMS -01 Power DMS Inc. 101 S. Garland Ave #300 Orlando FL 32801 COVERAGES CERTIFICATE NUMBER: 1966301311 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 rypE OF INSURANCE ADDL INSR UBR Me POLICY NUMBER POLICY EFF MMIDDIYYYY POLICY EXP MMIDDA'YYY LIMITS A GENERAL LIABILITY 21SBABX5336 : 6/30/2016. 6/30/2017 EACH OCCURRENCE $1,000,000 PREMISES Ea occurrence $1,000,000 X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE F-1 OCCUR MED EXP (Any one person) $10,000 PERSONAL B ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $2,000,000 'I. $ POLICY F7 PRO LbC 1 A AUTOMOBILE LIABILITY 21SBABX5338 6/30/2016 6I30I2017 Ea accident $1,000,000 BODILY INJURY (Per person) $ ANY AUTO : ALL OWNED SCHEDULED AUTOS AUTOS i BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ X NON -OWNED HIRED AUTOS X AUTOS - $ A X UMBRELLA LIAR X OCCUR 218BABX5338 6130/2016 6130/2017 EACH OCCURRENCE $5,000,000 AGGREGATE $5,000,000 EXCESS LIAR CLAIMS -MADE - DIED X RETENTIONZ 10 000 $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN 21WECVX6882 - 6/1512016 6/15/2017 X WC SIATU- OTH- ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $1,000,000 OFFICEWMEMBER EXCLUDED? ❑ NIA E.L. DISEASE - EA EMPLOYEE $1,000,000 (Mandatory In NH) If yyes, describe under 0 CRIPTION OFOPERATIONS below E. L. DISEASE - POLICY LIMIT $1,000,000 C Technology Services E &O Y ASD15DO01680 6/30/2016 6/3012017 Each Claim - 1,000,000 including Cyber Aggregate 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (Attach AC ORD 101, Additlonal Remarks Schedule, If more space Is required) The City of Santa Ana is included as additional insured in regards to general liability and cyber liability when r4writte , per the attached endorsements. or City of Santa Ana 60 Civic Center Plaza Santa Ana CA 92701 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED & t,+- ©1988.2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD ASCENT'" U N D E R W R I T I N G A. INSURED The insured means: A. The legal entity(s) shown in item 1 of the Declarations; & Any subsidiary of the logo[ entity(s) shown in item 1 of the Declarations, but only with respect to wrongful acts, Insured events, breaches or threats as detailed under the relevant Insuring Module that occur while it Is a subsidiary and otherwise covered by this policy; C. Any past, present, or future officer, director, trustee, or employee of any party described in VI (A) or (B) above., but only while acting within the scope of their duties as such; D. In the event that any party described in VI (A) or (B) above Is a partnership, limited liability partnership, or limited liability company, then any general or managing partner, principal, stockholder, or owner thereof, but only while acting within the scope of their duties as such; E, Any agent or independent contractor, including distributors, licensees, and sub - licensees, but only while acting on behalf of, at the direction of, or under the control of any party described In A (A) or (B) above; and F. Artj, ank(ky required by contract to be named an insured under this policy and to whom we consent in writing, but only for the acts of any such entity as provided by the contract, and as detailed Under the relevant Insuring Module. VII. DEFINITIONS A, Application means all application forms, including any attachments thereto, and all other information and materials submitted to us by you or on your behalf in connection with the underwriting of this policy. All such applications, attachments, information, and materials are deemed attached to and incorporated Into this policy. Bodily injury means physical injury, sickness. disease, death, mental anguish, mental injury, shock, humiliation or emotional distress sustained by any person. C. Breach of contract means breach of a written confracf(s) with a client to perform technology services because of: The technology services being negligently performed or containing a material defect; The technology services falling to most any statutory term concerning quality, safety, or fitness for a particular express purpose. or failing to most an implied duty to exercise that degree of care or skill consistent with applicable industry standards; or Breach of any hold harmless or indemnity provision regarding infringement of intellectual property rights, breach of security, or the confidentiality of information. D. Claim means: 1, Awriften demand for monetary damages or non- monetary relief, a request for a tolling agreement, the service of a civil suit, or institution of arbitration proceedings resolved by you seeking monetary damages or the threat or initiation of a suit andfor proceeding seeking a temporary restraining order or a preliminary or permanent Injunction; 2. A formal civil administrative proceeding or regulatory action or investigation to the extent covered by Insuring Module 7; 3. A network evonfi, A. Notification to us of the need to incur event management costs, notification expenses or support and credit ruminating expenses; or 5. A network extortion threat, (,)/ B. Notification to us that eleckromm theft, computer fraud and/or telecommunications fraud has occurred. Ascent US v2.2 (Hightide) 2.015 BUSINESS LIABILITY COVERAGE FORM (b) Rented to, in the care, custody or b. Coverage under this provision does not control of, or over which physical apply to: control is being exercised for any (1) 'Bodily injury" or "property damage" purpose by you, any of your that occurred; or "employees ", "volunteer workers ", any partner or member (if you are (2) 'Personal and advertising injury" a partnership or joint venture), or arising out of an offense committed any member (if you are a limited before you acquired or formed the liability company). organization. b. Real Estate Manager 4. Operator Of Mobile Equipment Any person (other than your "employee" or With respect to "mobile equipment" registered in "volunteer worker "), or any organization your name under any motor vehicle registration while acting as your real estate manager. law, any person is an insured while driving such c. Temporary Custodians Of Your equipment along a public highway with your Property permission. Any other person or organization responsible for the conduct of such person is Any person or organization having proper also an insured, but only with respect to liability temporary custody of your property if you arising out of the operation of the equipment, and die, but only: only if no other insurance of any kind is available (1) With respect to liability arising out of the to that person or organization for this liability. maintenance or use of that property; and However, no person or organization is an insured (2) Until your legal representative has with respect to: been appointed. a. 'Bodily injury" to a co- "employee" of the d. Legal Representative If You Die person driving the equipment; or Your legal representative if you die, but b. 'Property damage" to property owned by, only with respect to duties as such. That rented to, in the charge of or occupied by representative will have all your fights and you or the employer of any person who is duties under this insurance. an insured under this provision. e. Unnamed Subsidiary 5. Operator of Nonowned Watercraft Any subsidiary and subsidiary thereof, of With respect to watercraft you do not own that yours which is a legally incorporated entity is less than 51 feet long and is not being used of which you own a financial interest of to carry persons for a charge, any person is an more than 50% of the voting stock on the insured while operating such watercraft with effective date of this Coverage Part. your permission. Any other person or The insurance afforded herein for any organization responsible for the conduct of subsidiary not shown in the Declarations such person is also an insured, but only with as a named insured does not apply to respect to liability arising out of the operation of injury or damage with respect to which an in surance the watercraft, and only no other insured under this insurance is also an n any kind is available to that insured under another policy or would be person or organization anization for this liability. an insured under such policy but for its However, no person or organization is an termination or upon the exhaustion of its insured with respect to: limits of insurance. a. 'Bodily injury" to a co- "employee" of the 3. Newly Acquired Or Formed Organization person operating the watercraft; or Any organization you newly acquire or form, b. 'Property damage" to property owned by, other than a partnership, joint venture or rented to, in the charge of or occupied by limited liability company, and over which you you or the employer of any person who is maintain financial interest of more than 50% of an insured under this provision. the voting stock, will qualify as a Named 6. Additional Insureds When Required By Insured if there is no other similar insurance Written Contract, Written Agreement Or available to that organization. However: Permit a. Coverage under this provision is afforded The person(s) or organizations) identi ed in only until the 180th day after you acquire Paragraphs a. through f. below are a iti mal or form the organization or the end of the insureds when you have agreed, in ttenQ ®� policy period, whichever is earlier, and ` ) Form SS 00 08 04 05 Page 1 �f'24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a permit issued by a state or political subdivision, that such person or organization be added as an additional insured on your policy, provided the injury or damage occurs subsequent to the execution of the contract or agreement, or the issuance of the permit. A person or organization is an additional insured under this provision only for that period of time required by the contract, agreement or permit. However, no such person or organization is an additional insured under this provision if such person or organization is included as an additional insured by an endorsement issued by us and made a part of this Coverage Part, including all persons or organizations added as additional insureds under the specific additional insured coverage grants in Section F. — Optional Additional Insured Coverages. a. Vendors Any persons) or organization(s) (referred to below as vendor), but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products- completed operations hazard ". (1) The insurance afforded to the vendor is subject to the following additional exclusions: This insurance does not apply to (a) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement, (b) Any express warranty unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Page 12 of 24 (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection With the distribution or sale of the products; (f) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product, (g) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (i) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. b. Lessors Of Equipment (1) Any person or organization from whom you lease equipment, but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person or organization. k01 L Q0 Form SS 00 08 04 05 (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described in c! below. (b) Primary And Non - Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non - contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit ". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self - insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment. including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery ainst such person or organization in a c tract, agreement or permit that was cuted / prior to the injury or damage. Page 1 4