:
CITY OF RICHMOND
STANDARD CONTRACT
Department: Police Department Project Manager: Eric Tam Project Manager E-mail: Project Manager Phone No:
[email protected] (510) 621-1819
PR No: Vendor No: P.O./Contract No: 3863
Description of Services:
Develop and maintain police computer aided dispatch and records management system The parties to this STANDARD CONTRACT do mutually agree and promise as follows:
Parties. The parties to this Contract are the City of Richmond (herein referred to as the "City") and the following named Contractor:
Company Name: Mark 43
Street Address: 28 E. 28th Street, 12 Floor
City, State, Zip Code: New York, NY 10016
Contact Person: David Jochim
Telephone: (212) 651-9154 Email: [email protected].
Business License No: / Expiration Date:
A California corporation, limited liability corporation • general partnership, limited partnership, L individual, L] non-profit corporation, individual dba as [specify:]
/other [specify:] Delaware Corporation
Term. The effective date of this Contract is May 1, 2017 and it terminates June 30, 2022 unless terminated as provided herein.
Payment Limit. City's total payments to Contractor under this Contract shall not exceed $ 1,500,000 • City shall not pay for services that exceed the Contract Payment Limit unless a contract amendment has been approved by the City Council or City Manager.
4. Contractor's Obligations. Contractor shall provide those services and carry out that work described in the Service Plan (Exhibit A) which is attached hereto and is incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein.
City's Obligations. City shall make to the Contractor those payments described in the Payment Provisions (Exhibit B) which are attached hereto and are incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein.
Authorized Representatives and Notices. This Contract is subject to the Authorized Representatives and Notices Provisions (Exhibit C) which are attached hereto and are incorporated herein by reference.
General Conditions. This Contract is subject to the General Conditions (Exhibit D) which are attached hereto and are incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein.
Special Conditions. This Contract is subject to the Special Conditions (Exhibit E) (if any) which are attached hereto and are incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein. (Note:
other than Public Works contracts, the City will agree to Special Conditions only in unusual circumstances.)
Insurance Provisions. This Contract is subject to the Insurance Provisions (Exhibit F) which are attached hereto and are incorporated herein by reference.
10. Signatures. These signatures attest the parties' Contract hereto:
CITY OF RICHMOND CONTRACTOR:
a municipal corporation Mark43
By: Mut « The Corporation Chairperson or the Bard CROUCH President or Viee President should sign below)
Title: maver By:
I hereby certify that this Contract Tite: CEO, President has been approved by City Council.
Date Signed: 05/17/2017
Pappula Chiste
MATTHEW N. POLEGA
(* The Corporation Chief Financial Officer,
Secretary or Assistant Secretary should sign below)
Approved as to formy! By: Matthew N. Polega
By: Tille: Secretary? UP off Operations
City Attorney
Date signed: 5/1> /201>
(NOTE: Pursuant to California Corporations
Code Section 313, if Contractor is a corporation
or nonprofit organization, this Contract (1) must
be signed by (a) the Chairperson of the Board,
President or Vice-President and (b) the
Secretary any Assistant Secretary, the Chief
Financial Officer or any Assistant Treasurer.
LIST OF ATTACHMENTS:
Service Plan Exhibit A
Payment Provisions Exhibit B
Authorized Representatives and Notices Exhibit C
General Conditions Exhibit D
Special Conditions Exhibit E
Insurance Provisions Exhibit F
Standard Contract/EJ/TE 9-26-07
For the Contract between the City of
Richmond and
Mark43
EXHIBIT A
SERVICE PLAN
Contractor shall, to the satisfaction of the Eric Tam _. perform the following services and be compensated as outlined below:
Mark43 to provide temporary interface from New World CAD to Cobalt RMS until the Mercury CAD product is completed no later than June 30th, 2018.
Contractor shall maintain and provide support for Mercury CAD, Cobalt RMS software product, and will store the data within current CJIS and DOJ guidelines. .. continued next page..
EXHIBIT A
SERVICE PLAN
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in Exhibit G, Software License Provisions.
1. Services. The Services covered by this Agreement consist of the following:
a. Professional Services:
I. With the cooperation and consent of Eric Tam, development of an implementation plan to cover the Professional Services described herein. Implementation plan will target a June 1, 2018 launch date for CAD
ii. Interface development
a. County Message Switch (CLETS queries from within CAD and RMS) b. Cop Logic
c. Contra Costa ARIES
d. ' Crime Reports
e. Zoll Tablet PCR
f. First Watch
g. Crime Mapping
h. Zoll FireRMS
i. Priority Dispatch ProQA
J. Mobile PD
k. Tri-Tech AMR
1. Rip-N-Run Interface or similar feature
m. Zetron Ringdown
n. Cogent Livescan
o. Temporary interface from New World CAD to Cobalt RMS Provision of two servers to be installed at Richmond Police Department Dispatch Center for interface integration. Mark43 to provide service, installation, configuration and support for equipment and its software. ili. Data Migration: Convert and combine two existing New World databases and import into Mark43's Cobalt RMS System
iv. Computer Aided Dispatch Development and Configuration
1. Testing
a. Interface Testing
b. Network Load Test
c. System Configuration Test
d. Support Model Test
2. Training - Mark43 will provide master instructors to train Subscriber training personnel and/or Authorized Users. Mark43 will provide the following materials for all training courses:
a. Lesson Plans
Mark43 Application (Training Environment)
C. Slide Show
d. Quick Help Guides
e. User Guide
v. Case Management Configuration and Implementation
1. Training - Mark43 will provide master instructors to train Subscriber training personnel 1 and/or Authorized Users. Mark43 will provide the following materials for all training courses:
a. Lesson Plans
b. Mark43 Application (Training Environment)
c. Slide Show
d. Quick Help Guides
e. User Guide
b. Saas Services:
i. The Applications to be provided are described as follows:
1. Records Management System
a. Field Contact & Offense Reporting
b. Incident Reporting
c. Arrest & Booking
d. DUl Arrest
e. Automatic UCR & NIBRS Coding
f. Exported PDF Forms
g. Custom Units, Teams, and User Roles
h. Configurable Report Approval Chains
i. Dynamic Master Entity Profiles
j. Image, Video, and Audio Files Uploads
K. Collaborative Case Management
Permission-based Read/Write Privileges Dynamic
m. User-Specific Reports Dashboard
n. Advanced Search
Rich Text Formatting
p. Auto-validation of Fields, Locations, and People
9. Configurable Fields
r. Smart Duplicate Data Entry Logic and Prevention
s. Configure all mandated NCIC Masks for Cobalt RMS
2. Computer Aided Dispatch
a. Call Taking & Dispatching
b. Event Management
c. Call Processing
d. Automatic Vehicle Location Mapping (integration)
e. Unit Management and Monitoring
f. Call Management
g. Silent Dispatching
h. Command Line functionality
i. FireCAD Run Card and Dispatch capabilities
ii. Following the launch of the SaaS Services (the "Regular Usage Period"), Mark43 will provide Subscriber with the SaaS Services for the Fees set forth in Exhibit B.
2. Support Services. As part of the SaaS Services, subject to Section 2(d) of the Software License Provisions, Mark43 shall establish, sufficiently staff and maintain the organization and processes necessary to provide telephone and/or email based technical support, troubleshooting, error identification, isolation and remediation, and other assistance directly to Subscriber and its Authorizec Users to support Subscriber's use, deployment and validation of the SaaS Services as necessary to 2 support Mark43's obligations under this Agreement. Email support will be available on a 24x7 basis, and after normal business hours and on holidays. The contact information for Mark43's technical support organization is as follows and Mark43 will notify Subscriber in writing of any changes no less than 5 days in advance: [email protected]. Mark43 shall provide Subscriber with online access to its known-problem database and any other resource containing information that will aid in problem and error resolution and correction, as well as any other technical resources made electronically available to any of Mark43's other customers. The Mark43 account manager or primary point of contact for Subscriber with respect to this Agreement will be Dom Pellegrini ([email protected]).
Service Levels. Mark43 shall provide the Applications in accordance with the following services levels.
a. Service Levels for the Records Management System Application (RMS). i. RMS Availability. During any calendar month of a Regular Usage Period, the RMS shall be available to users no less than 99.9% of the time on a 24x7 basis, excluding scheduled maintenance of the RMS ("RMS Scheduled Downtime"); provided, however, that Mark43 is not responsible for any downtime of the Applications or Software caused by Third Party Data services (e.g. Department of Motor Vehicles license plate database), or Third Party Components, and such Third Party downtime will not count against the service levels promised herein; provided, further, that Mark43 shall be responsible for any downtime of the Applications or Software caused by Integrated Third Party Software (as defined below) solely to the extent specified in Section 3(b) below ("Service Levels for Integrated Third Party Software"). Mark43 shall provide Subscriber with prompt notification as soon as it becomes aware of any actual or potential unscheduled downtime (defined below) of the RMS, as well as continual periodic updates during the unscheduled downtime regarding Mark43's progress in remedying the unavailability and the estimated time at which the RMS shall be available. ii. RMS Service Credits. In the event that Mark43 fails to make the RMS available at least
99.9% of the time in any given month during the Regular Usage Period due to RMS Unavailability (as defined below), Mark43 will credit the Subscriber's account for the unavailable RMS as follows:
Credit
RMS Availability (Monthly) Percentage
Above 99.9% 0%
99.8 - 99.0% 10%
98.9 - 98.0% 20%
Below 97.9% | 30%
"RMS Unavailability" is defined as the percentage of minutes per month in which the RMS is completely and generally unavailable for Subscriber's use (but not the use of any one Authorized User), provided that RMS Unavailability does not include any unavailability attributable to: (a) RMS Scheduled Downtime for maintenance (whether by Mark43, by a vendor, or by Subscriber); (b) acts or omissions of Subscriber or any Subscriber user of the RMS; (c) server downtime related to connectivity issues resulting from Third Party-managed VPN access to hosted server or Subscriber internal network problems; (d) defects or bugs in the Applications or Software caused by Subscriber, any Authorized User, or any Affiliate, employee, agent or independent contractor of Subscriber; or (e) any other cause(s) beyond Mark43's reasonable control, including but not limited to those caused by Third Party Data services (e.g. Department of Motor Vehicles license plate database), Third Party Components, overall internet congestion or a force majeure. Subscriber will be responsible for immediately notifying Mark43 of all Third Party-managed VPN access and internal or external (e.g. internet service provider) network problems that arise. "Credit Percentage" means the applicable percentage of the portion of the Fees attributable to Services in the calendar month in which the RMS Unavailability occurs. For example, if 3 Subscriber has paid Mark43 $1,000 for one year of a Regular Usage Period, and the RMS Availability falls to 99.5% during any calendar month in that year, then Mark43 will owe Subscriber a 10% credit on that month's portion of the Fee, or: $1,000/12 = $83.33 per month, and 10% of $83.33 = $8.33. In this example, Mark43 would owe Subscriber $8.33 in credit for the month in which RMS Availability fell to 99.5%.
In order to receive this credit, Subscriber must notify Mark43 in writing within fifteen (15) days following the end of the month the RMS Unavailability occurred. All claims are subject to review and verification by Mark43 prior to any credits being granted. Mark43 will acknowledge credit requests within fifteen (15) business days of receipt and will inform Subscriber whether such claim request is approved or denied. The issuance of RMS Service Credit by Mark43 hereunder is Subscriber's sole and exclusive remedy for any failure by Mark43 to satisfy the service levels set forth in this Section 3(a). b. Service Levels for the Computer Aided Dispatch Application (CAD). i. CAD Availability. During any calendar month of a Regular Usage Period, CAD shall be available to Subscriber no less than 99.95% of the time on a 24x7 basis, excluding scheduled maintenance of CAD ("CAD Scheduled Downtime"); provided, however, that Mark43 shall service levels promised herein. Any CAD Scheduled Downtime shall be scheduled on minimal traffic days whenever possible. The parties agree that the total amount of CAD Scheduled Downtime shall not exceed 60 minutes during any 30-day period. Mark43 shall provide Subscriber with immediate telephone notification to the point of contact set forth in the Agreement as soon as it becomes aware of any actual or potential unavailability of CAD other than CAD Scheduled Downtime ("CAD Unscheduled Downtime"), as well as continual periodic updates during the CAD Unscheduled Downtime regarding Mark43's progress in remedying the unavailability and the estimated time at which the CAD shall be available. її. Error Response and Resolution. When reporting a failure of the CAD to Mark43 (a "CAD Error"), Subscriber shall identify the CAD Error as a Severity Level 1, 2, or 3 (each defined below) based on Subscriber's initial evaluation. If Mark43 becomes aware of a Severity Level 1 or 2 CAD Error, Mark43 shall promptly, but in no event to exceed the Initial Response timeframe in the chart set forth below, notify Subscriber, and such notice shall identify the CAD Error as a Severity Level 1 or 2 CAD Error based on Mark43's initial evaluation. Mark43 and Subscriber shall cooperate in good faith to jointly determine whether a CAD Error is a Severity Level 1, 2, or 3 CAD Error; provided, however, that in the event that Mark43 and Subscriber cannot come to such joint determination despite such good faith cooperation, Mark43's determination shall control. Subscriber may report to Mark43 any Severity Level 1 or 2 CAD Error 24 hours per day, 7 days per week, and any Severity Level 3 CAD Error during Mark43's normal business hours. Upon notification by Subscriber of a CAD Error, Mark43 shall commence and diligently pursue correction of such CAD Error, at all times employing at least the level of effort ("Level of Effort") designated in the chart set forth below and in all instances providing an Initial Response, temporary resolution or fix (a "Work Around") and a permanent fix ( a "Permanent Correction") to Subscriber within the timeframes in the chart set forth below, as measured from the earlier of the time that Subscriber notifies Mark43 or Mark43 first becomes aware of a CAD Error. Mark43 shall provide Subscriber with updates to the status of Mark43's efforts (the "Status Updates") by telephone, email or such other means as may be reasonably designated by Subscriber from time to time, no less frequently than the timeframes identified in the chart set forth below. For the avoidance of doubt, a CAD Error does not include, and Mark43 will not be responsible for, any feature or functionality of the CAD that is not set forth in Section 1(b)(i)(2) of this Service Plan or in a project plan created for Subscriber by Mark43.
1. "Severity Level 1 CAD Error" means any CAD Error that, for fifty percent (50%) or more of Subscriber's dispatchers, renders the CAD or any material portion thereof inoperative, 4 or materially impairs use of the CAD in a production environment. Examples of Severity Level 1 CAD Errors include, without limitation, situations in which the CAD are inoperable and causing dispatchers to experience a total loss of service, continuous or frequent instabilities, a loss of connectivity or inability to communicate as intended, or there is an inability to process transactions, the creation of a hazard or emergency, or the inability to use a primary feature or function of the CAD.
2. "Severity Level 2 CAD Error" means any CAD Error that, for fifty percent (50%) or more of Subscriber's dispatchers, substantially impairs use of one or more features or functions of the CAD, which constitute less than a material portion thereof, in a production environment, or any CAD Error occurring in a testing or other non-production environment that, if occurring in a production environment, would constitute a Severity Level 1 CAD Error. Examples of Severity Level 2 CAD Errors include, without limitation, situations in which a CAD Error is causing intermittent impact to dispatchers, loss of redundancy, loss of routine administrative or diagnostic capability, or inability to use a secondary feature or function of the CAD.
3. "Severity Level 3 CAD Error" means any CAD Error that, for fifty percent (50%) or more of Subscriber's dispatchers, has a minimal impact on the performance or operation of the CAD. Examples of Severity Level 3 CAD Errors include, without limitation, a CAD Error having only a minimal impact on dispatchers and CAD Errors seen in a test or other non- production environment that, if deployed in a production environment, would not Severity Initial Work Around Permanent Status
Level Level of Effort Correction Updates
Response
Continuous best Immediate, but Every 3 hours
efforts, 24 hours prior to a Work
1 in no event to 3 calendar Around and
per day, 7 days exceed 30 6 hours
per week days every calendar
minutes day thereafter
Commercially Every 6 hours
reasonable 5 calendar prior to a Work
2 efforts, 24 hours 1 hour 24 hours Around and
per day, 7 days days every calendar
per week day thereafter
Commercially
reasonable
efforts, during 1 Business 20 Business
normal business 10 Business
3 Day Days
hours Days
Business Days
ili. CAD Service Credits. Mark43's failure to meet the CAD services levels set forth in Section 3(b) during any calendar month of a Regular Usage Period entitles Subscriber to Fee credits (the "CAD Service Credits)") calculated as set forth below. Any CAD Service Credits owed to Subscriber hereunder shall offset against any subsequent Fees owed by Subscriber and shall be Subscriber's sole and exclusive remedy with respect to Mark43's failure to provide the CAD. If Mark43 fails to meet the CAD service levels set forth in this Section 3(b) in any applicable calendar month during the Regular Usage Period, then Mark43 shall credit Subscriber five percent (5%) of the portion of the Fees attributable to CAD Services in the calendar month in which such CAD service level failure occurs. The applicable CAD Service Credits will be applied to the next invoice. Only one CAD Service Credit for failure to meet the 5 applicable service level shall be granted for each Service in a calendar month of the Regular Usage Period.
c. Service Levels for Integrated Third Party Software. Notwithstanding anything else to the contrary contained herein, Mark43 shall be responsible for any downtime of the Applications, Software or Integrated Third Party Software (as defined below) that is caused by Integrated Third Party Software solely to the extent specified in this Section 3(c). Credit Percentages and Service Credits referenced elsewhere in this Contract shall not apply to downtime of the Applications, Software or Integrated Third Party Software caused by Integrated Third Party Software or the integrations or connections to Integrated Third Party Software. i. Availability of Third Party Applications. The Agreement and/or Statement of Work will outline specific Third Party Application integrations (the "Integrated Third Party Software") to be performed by Mark43 during the Professional Services Period, and the Subscriber's and Mark43's respective rights regarding acceptance of those Services. During the Regular Usage Period, the Integrated Third Party Software shall be operational no less than 99.9% of the time on a 24x7 basis, excluding any scheduled maintenance of the Integrated Third Party Software (whether scheduled by Mark43 or by the Third Party Provider, the "Integration Scheduled Downtime"); provided, however, that Mark43 shall not be responsible for downtime to Applications or Software caused by upgrades or updates to Integrated Third Party Software of which Mark43 does not receive the requisite advance notice, and such downtime will not count against the service levels promised herein. Mark43 agrees that it shall schedule any Integration Scheduled Downtime on minimal traffic days whenever possible. The Parties further agree that Mark43 shall not schedule in excess of 90 minutes of Integration Scheduled Downtime in during any 30-day period. Mark43 shall provide Subscriber with immediate telephone notification to the point of contact set forth in the Contract as soon as it becomes aware of any actual or potential unavailability of an Integration other than Integration Scheduled Downtime ('Integration Unscheduled Downtime"), as well as continual periodic updates during the Integration Unscheduled Downtime regarding Mark43's progress in remedying the unavailability and the estimated time at which the Integration shall be available. ii. Responsibilities for Planned Updates. The Subscriber shall provide Mark43 with prompt. notice, and in no case fewer than forty-five (45) days' advance notice, of any update by the Third Party Provider of Integrated Third Party Software. Mark43 shall undertake commercially reasonable efforts to patch, repair or update the Software in order to integrate it with the updated Integrated Third Party Software.
ili. Responsibilities for Planned Upgrades. The Subscriber shall provide Mark43 with prompt notice, and in no case fewer than ninety (90) days' advance notice, of any planned upgrade by the Third Party provider of Integrated Third Party Software. Mark43 shall evaluate the time and resources required to patch, repair or update the Software in order to integrate it with the upgraded Integrated Third Party Software. The Parties shall engage in good faith negotiations to agree on the terms (including, without limitation, schedule and price) on which Mark43 would develop a patch, repair, update or Upgrade to integrate the Software with the Integrated Third Party Software.
defined below) based on Subscriber's initial evaluation. If Mark43 becomes aware of a Severity Level 1 or 2 Integration Error, Mark43 shall promptly, but in no event to exceed the Initial Response timeframe in the chart set forth below, notify Subscriber, and such notice shall identify the Integration Error as a Severity Level 1 or 2 Integration Error based on Mark43's initial evaluation. Mark43 and Subscriber shall cooperate in good faith to jointly determine whether an Integration Error is a Severity Level 1, 2, or 3 Integration Error, provided, however, that in the event that Mark43 and Subscriber cannot come to such joint determination despite 6 such good faith cooperation, Mark43's determination shall control. Subscriber may report to Mark43 any Severity Level 1 or 2 Integration Error 24 hours per day, 7 days per week, and any Severity Level 3 Integration Error during Mark43's normal business hours. Upon notification by Subscriber of an Integration Error, Mark43 shall commence and diligently pursue correction of such Integration Error, at all times employing at least the Level of Effort designated in the chart set forth below and in all instances providing an Initial Response, a Work Around and a Permanent Correction to Subscriber within the timeframes in the chart set forth below, as measured from the earlier of the time that Subscriber notifies Mark43 or Mark43 first becomes aware of a Integration Error. Mark43 shall provide Subscriber with Status Updates by telephone, email or such other means as may be reasonably designated by Subscriber from time to time, no less frequently than the timeframes identified in the chart set forth below. For the avoidance of doubt, an Integration Error does not include, and Mark43 will not be responsible for, any feature or functionality of the Integrated Third Party Software that is not set forth in the Statement of Work.
1. "Severity Level 1 Integration Error" means any Integration Error that, for fifty percent (50%) or more of Subscriber's active Users, renders the CAD or any material portion thereof inoperative, or materially impairs use of the CAD in a production environment or is specified as a Severity Level 1 Integration Error in the Integration Control Document.
Examples of Severity Level 1 Integration Errors include, without limitation, situations in which the Integrated Third Party Software block a critical workflow or the inability to use a primary feature or function of the CAD.
"Severity Level 2 Integration Error" means any Integration Error that, for fifty percent (50%) or more of Subscriber's active Users, substantially impairs use of one or more features or functions of the CAD, which constitute less than a material portion thereof, in a production environment, or any Integration Error occurring in a testing or other non- production environment that, if occurring in a production environment, would constitute a Severity Level 1 Integration Error, or that is specified as a Severity Level 2 Integration Error in the Integration Control Document. Examples of Severity Level 2 Integration Errors include, without limitation, situations in which an Integration Error is causing a major workflow disruption, loss of routine administrative or diagnostic capability, or inability to use a secondary feature or function of the CAD
3. "Severity Level 3 Integration Error" means any Integration Error that, for fifty percent (50%) or more of Subscriber's active Users, has a minimal impact on the performance or operation of the CAD or that is specified as a Severity Level 3 Integration Error in the Integration Control Document. Examples of Severity Level 3 Integration Errors include, without limitation, an Integration Error having only a minimal impact on dispatchers ol workflow and Integration Errors seen in a test or other non-production environment that, it deployed in a production environment, would not constitute a Severity Level 1 Integration Error.
Severity Level of Initial Work Around Permanent Status
Level Effort Response Correction 'Updates.
Continuous Every 3 hours
best efforts, 24 Immediate, but prior to a
1 hours per day, in no event to 6 hours 3 calendar Work Around 7 days per exceed 30 days and every
week minutes calendar day
thereafter
Commercially 5 calendar Every 6 hours
2 reasonable 1 hour 24 hours prior to a
days Work Around
efforts, 24
hours per day, and every
7 days per calendar day
week thereafter
Commercially Every 2
reasonable Business
efforts, during Days prior to
normal 1 Business 10 Business 20 Business a Work
business Around and
Day Days Days every 5
hours
Business
Days
thereafter
4. Transition Services:
a. Upon termination of the Agreement for any reason, and subject to all Fees due being paid in full, Mark43 will create searchable PDFs of each record (each, a "Record") and provide them to the Subscriber for download. Subscriber may request, and Mark43 will consider, other formats in which to create the Records, but the final format of all Records will be determined in Mark43's sole discretion. Records can be uploaded to Subscriber's new records management system by the Subscriber or its new vendor. b. Preparation
ii. Mark43 will provide one (1) account for the Subscriber to access a web-based storage platform to retrieve Subscriber documents and Records (the "Transition Account"). The Transition Account will be available to Subscriber for thirty (30) days prior to the Cutoff Date.
c. Content
i. Each Report in Cobalt will be recreated as a searchable PDF (or other mutually agreed to format as described above) using the standard Cobalt format then in use.
ii. All archive files will be accessible via the internet on the Cutoff Date. d. Support
i. Mark43 will maintain Subscriber data in Cobalt for up to 1 year following the Cutoff Date.
il. Mark43 will maintain Subscriber PDF archives for up to 2 years following the Cutoff Date.
ili. Mark43 will resolve any issues it deems to be the result of errors in the Cobalt platform or export process for a period of six (6) months after the Cutoff Date.
e. Transition Assistance as outlined in this Section 4 is included in the Fees charged to Subscriber for the Services. Fees are due and payable up to the Cutoff Date. In the event that any Fees have not been paid as required in this Agreement, Mark43 may etain all Records and decline to provide the support outlined in this Section 4 until such 8 For the Contract between the City of
ichmond an
lark4
EXHIBIT B
PAYMENT PROVISIONS
{PLEASE NOTE THAT THE CITY OF RICHMOND SHALL NOT PAY FOR SERVICES
THAT EXCEED THE CONTRACT PAYMENT LIMIT UNLESS A CONTRACT
AMENDMENT HAS BEEN APPROVED BY THE CITY COUNCIL OR THE CITY MANAGER}
1. Provided Contractor is not in default under this Contract, Contractor shall be compensated as provided below.
2. Any and all payments made pursuant to this Contract shall be subject to the Contract Payment Limit. The Payment Limit includes expenses (phones, photo copying, meals:
and travel etc). Invoices, shall be adequately detailed, based on accurate records, and be in a form reasonably satisfactory to the City. Contractor may be required to provide back-up material upon request.
3. Contractor shall submit timely invoices to the following address:
Attention: City of Richmond, Finance Department - Accounts Payable Project Manager: Eric Tam _Department: Richmond Police
PO Box 4046
Richmond, CA 94804-0046
4. All invoices that are submitted by Contractor shall be subject to the approval of the City's Project Manager, Eric Tam before payments shall be authorized.
5. The City will pay invoice(s) within 45 days after completion of services to the City's satisfaction. The City shall not pay late fees or interest.
6. A Richmond business license shall be obtained before any payment under this Contract shall be authorized and the business license must be kept current during the term of this Contract for payments to continue to be authorized.
7. All insurance coverage required by this Contract shall be provided by the Contractor before this Contract shall be executed by the City. The insurance coverage must be kept current during the term of this Contract for payments to continue to be authorized.
For the Contract between the City of
Richmond and
Mark43
EXHIBIT C
AUTHORIZED REPRESENTATIVES AND NOTICES
1. Notices. All notices, demands, statements, or communications provided for by this Contract shall be in writing and may be delivered by deposit in the United States mail, postage prepaid. Notices to the City shall be addressed to the Department Head and (as delineated below in section 1.1) to the project manager responsible for the administration of or the supervision of the scope of work under this Contract. Notices to the Contractor shall be addressed to the party designated by Contractor (as delineated below in section 1.2). Notice shall be deemed delivered (a) upon personal delivery; (b) as of the fifth business day after mailing by United States certified mail, postage prepaid, addressed to the proper party; or (c) as of 12:00 p.m. on the second business day immediately after the day it is deposited with and accepted by Federal Express, or a similar overnight courier service, addressed to the proper party and marked for next business day morning delivery. For the purposes of this Contract, a "business day" means any day Monday through Friday that is not a holiday recognized by the federal government or the State of California.
1.1 CITY hereby designates as its Authorized Representative the Project Manager whose name and address are as follows:
Eric Tam
City of Richmond
1701 Regatta Bld
Richmond, CA 94804-0046
1.2 CONTRACTOR hereby designates as its Authorized Representative the Project Manager whose name and address are as follows:
David Jochim
Mark43
28 E. 28th Street, 12th Floor
New York, NY 10016
EXHIBIT D
GENERAL CONDITIONS
1. Independent Contractor. Contractor acknowledges, represents and warrants that Contractor is not a regular or temporary employee, joint venturer or partner of the City, but rather an independent Contractor. This Contract shall not be construed to create an agency, servant, employee, partnership, or joint venture relationship. As an independent Contractor, Contractor shall have no authority to bind City to any obligation or to act as City's agent except as expressly provided herein. Due to the independent Contractor relationship created by this Contract, City shall not withhold state or federal income taxes, the reporting of which shall be Contractor's sole responsibility.
2. Brokers. Contractor acknowledges, represents and warrants that Contractor has not hired, retained or agreed to pay any entity or person any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Contract.
3. City Property. The rights to applicable plans, drawings, reports, calculations, data, specifications, videos, graphics or other materials prepared for or obtained pursuant to this Contract, which, upon request, are to be delivered to City within a reasonable time, shall be deemed assigned to City. If applicable, Contractor shall prepare check prints upon request. Notwithstanding the foregoing, Contractor shall not be obligated to provide to City proprietary software or data which Contractor has developed or had developed for Contractor's own use; provided, however, that Contractor shall, pursuant to Section 15 below, indemnify, defend and hold harmless City from and against any discovery or Public Records Act request seeking the disclosure of such proprietary software or data.
4. Patents, Trademarks, Copyrights and Rights in Data: Contractor shall not publish or transfer any materials, discoveries, developments, concepts, designs, ideas, know how, improvements, inventions and/or original works of authorship resulting from activities supported by this Contract without the express prior written consent of the City Manager. If anything resulting from activities supported by this Contract is patentable, trademarkable, copyrightable or otherwise legally protectable, City reserves the exclusive right to seek such intellectual property rights. Notwithstanding the foregoing, Contractor may, after receiving City's prior written consent, seek patent, trademark, copyright or other intellectual property rights on anything resulting from activities supported by this Contract. However, City reserves, and Contractor irrevocably grants, a nonexclusive, fully paid-up, royalty-free, assumable, perpetual, worldwide license, with the right to transfer, sublicense, practice and exploit said license and the right to make, have made, copy, modify, make derivative works of, use, sell, General Conditions/EJ/TE 01-19-11 1 of 13
import, and otherwise distribute under all applicable intellectual properties without restriction of any kind said license.
Contractor further agrees to assist City, at City's expense, in every proper way to secure the City's rights in any patents, trademarks, copyrights or other intellectual property rights relating thereto, including the disclosure to City of all pertinent information and data with respect thereto. Contractor shall also assist City in the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments which City shall deem necessary in order to apply for, obtain, maintain and transfer such rights, or if not transferable, to waive such rights. Contractor shall further assist City in the execution of all applications, specifications, oaths, assignments, recordations and all other instruments which City shall deem necessary in order to assign and convey to City, and any assigns and nominees the sole and exclusive right, title and interest in and to any patents, trademarks, copyrights or other intellectual property rights relating thereto. Contractor further agrees that its obligation to execute or cause to be executed, when it is in Contractor's power to do so, any such instruments or papers shall continue during and at all times after the end of Contractor's services and until the expiration of the last such intellectual property right. Contractor hereby irrevocably designates and appoints City, and its duly authorized officers, agents and servants, as its agent and attorney-in-fact, to act for and in its behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters of patents, copyright and other registrations. This power of attorney is coupled with an interest and shall not be affected by Contractor's subsequent incapacity.
5. Inspection. Contractor's performance, place of business and records pertaining to this Contract are subject to monitoring, inspection, review and audit by authorized representatives of the CITY, the State of California, and the United States Government.
If the project or services set forth in Exhibit A shall be performed on City or other public property, City shall have the right to inspect such work without notice. If such project or services shall not be performed on City or other public property, City shall have the right to inspect such work upon reasonable notice.
6. Services. The project or services set forth in Exhibit A shall be performed to the full satisfaction and approval of City. In the event that the project or services set forth in Exhibit A are also itemized by price, City, in its sole discretion, may, upon notice to Contractor, delete certain items or services set forth in Exhibit A, in which case there shall be a corresponding reduction in the amount of compensation paid to Contractor.
General Conditions/EJ/TE 01-19-11 2 of 13
Contractor shall, at its own cost and expense, furnish all facilities and equipment necessary for Contractor to complete the project or perform the services required herein, unless otherwise provided in Exhibit A.
7. Records. Contractor shall keep and make available for inspection and copying by authorized representatives of the City, the State of California, and the United States Government, the Contractor's regular business records and such additional records pertaining to this Contract as may be required by the City.
Contractor shall retain all documents pertaining to this Contract for a period of five (5) years after this Contract's termination (or for any further period that is required by law) and until all Federal or State audits are complete and exceptions resolved for this contract's funding period. Upon request, CONTRACTOR shall make these records available to authorized representatives of the CITY, the State of California, and the United States Government.
Contractor shall keep full and detailed accounts, maintain records, and exercise such controls as may be necessary for proper financial management under this Contract. The Contractor's accounting and control systems shall be satisfactory to City. Contractor's accounting systems shall conform to generally accepted accounting principles and all records shall provide a breakdown of total costs charged under this Contract, including properly executed payrolls, time records, utility bills, invoices and vouchers. The City shall be afforded prompt access to Contractor's records, books, and Contractor shall preserve such project records for a period of at least five (5 years after the termination of this Contract, or for such longer period as may be required by law.
Contractor shall permit City and its authorized representatives and accountants to inspect, examine and copy Contractor's books, records, accounts, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to the project or services set forth in Exhibit A, and any and all data relevant to this Contract at any reasonable time for the purpose of auditing and verifying statements, invoices, or bills submitted by Contractor pursuant to this Contract and shall provide such assistance as may be reasonably required in the course of such inspection. Contractor shall also allow City access to the record keeping and accounting personnel of Contractor.
City further reserves the right to examine and re-examine said books, records, accounts, and data during the five (5 year period following the termination of this Contract; and Contractor shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, and data in any manner whatever for five (5 years after the termination of this Contract.
General Conditions/EJ/TE 01-19-11 3 of 13
Pursuant to California Government Code § 10527, the parties to this Contract shall be subject to the examination and audit of representatives of the Auditor General of the State of California for a period of three (3) years after final payment under this Contract. The examination and audit shall be confined to those matters connected with the performance of this Contract including, but not limited to, the cost of administering this Contract.
8. Changes and Extra Work. All changes and/or extra work under this Contract shall be performed and paid for in accordance with the following:
Only the City Council or the City Manager may authorize extra and/or changed work. Contractor expressly recognizes that other City personnel are without authorization to either order extra and/or changed work or waive contract requirements, Failure of Contractor to secure the authorization for such extra and/or changed work shall constitute a waiver of any and all right to adjustment in contract price due to such unauthorized work and Contractor thereafter shall be entitled to no compensation whatsoever for performance of such extra and/or changed work.
If Contractor is of the opinion that any work which Contractor has been directed to perform is beyond the scope of this Contract and constitutes extra work, Contractor shall promptly notify City of the fact. The City shall make a determination as to whether or not such work is, in fact, beyond the scope of this Contract and constitutes extra work. In the event that City determines that such work does constitute extra work, City shall provide extra compensation to Contractor on a fair and equitable basis. A change order or Contract Amendment providing for such compensation for extra work shall be negotiated between City and Contractor and executed by Contractor and the appropriate City official.
In the event City determines that such work does not constitute extra work, Contractor shall not be paid extra compensation above that provided herein and if such determination is made by City staff, said determination may be appealed to the City Council; provided, however, a written appeal must be submitted to the City Manager within five (5) days after the staff's determination is sent to Contractor. Said written appeal shall include a description of each and every ground upon which Contractor challenges the staffs determination.
9. Additional Assistance. If this Contract requires Contractor to prepare plans and specifications, Contractor shall provide assistance as necessary to resolve any questions regarding such plans and specifications that may arise during the period of advertising for bids, and Contractor shall issue General Conditions/EJ/TE 01-19-11 4 of 13
any necessary addenda to the plans and specifications as requested. In the event Contractor is of the opinion that City's requests for addenda and assistance is outside the scope of normal services, the parties shall proceed in accordance with the changes and extra work provisions of Section 8 of these General Conditions.
10. Professional Ability. Contractor acknowledges, represents and warrants that Contractor and its employees are skilled and able to competently provide the services hereunder, and possess all professional licenses, certifications, and approvals necessary to engage in their occupations.
City has relied upon the professional ability and training of Contractor as a material inducement to enter into this Contract. Contractor shall perform in accordance with generally accepted professional practices and standards of Contractor's profession. In the event that City, in its sole discretion, desires the removal of any person employed or retained by Contractor to perform services hereunder, such person shall be removed immediately upon receiving notice from City.
11. Business License. Contractor shall obtain a Richmond Business License before performing any services required under this Contract. The failure to so obtain such license shall be a material breach of this Contract and grounds for immediate termination by City; provided, however, that City may waive the business license requirement in writing under unusual or extraordinary circumstances without necessitating any modification of this Contract to reflect such waiver.
12. Termination Without Default. Notwithstanding any provision herein to the contrary, City may, in its sole and absolute discretion and without cause, terminate this Contract at any time prior to completion by Contractor of the project or services hereunder, immediately upon written notice to Contractor. Contractor may terminate this Contract at any time in its sole and absolute discretion and without cause upon 30 days' written notice to City. In the event of termination by either party, Contractor shall be compensated for: (1) all authorized work satisfactorily performed prior to the effective date of termination; (2) necessary materials or services of others ordered by Contractor for this Contract, prior to receipt of notice of termination, irrespective of whether such materials or services of others have actually been delivered, provided that Contractor is not able to cancel such orders. Compensation for Contractor in such event shall be determined by City in accordance with the percentage of the project or services completed by Contractor; and all of Contractor's finished or unfinished work product through the time of the City's last payment shall be transferred and assigned to City. Additionally, in the event of such termination, the City may proceed with the work in any reasonable manner it chooses.
General Conditions/EJ/TE 01-19-11 •5 of 13
13. Termination in the Event of Default. Should Contractor fail to perform any of its obligations hereunder, within the time and in the manner provided or otherwise violate any of the terms of this Contract, City may immediately terminate this Contract by giving written notice of such termination, stating the reasons for such termination. Contractor shall be compensated as provided in Section 12 of these General Conditions; provided, however, there shall be deducted from such amount the amount of damage, including attorney's fees, expert witness fees and costs, if any, sustained by City by virtue of Contractor's breach of this Contract. Additionally, in the event of such termination, the City may proceed with the work in any reasonable manner it chooses.
14. Conflict of Interest. . Contractor acknowledges, represents and warrants that Contractor shall avoid all conflicts of interest (as defined under any federal, state or local statute, rule or regulation, or at common law) with respect to this Contract. Contractor further acknowledges, represents and warrants that no City official or employee has any economic interest, as defined in Title 2, California Code of Regulations §S 18703.1 through 18703.5, with Contractor that would invalidate this Contract. Contractor acknowledges that in the event that Contractor shall be found by any judicial or administrative body to have any conflict of interest (as defined above) with respect to this Contract, all consideration received under this Contract shall be forfeited and returned to City forthwith. This provision shall survive the termination of this Contract for one (1) year.
15. Indemnification.
(a) If this Contract is a contract for design professional services subject to California Civil Code Section 2782.8(a) and Contractor is a design professional, as defined in California Civil Code Section 2782.8(b)(2), Contractor shall hold harmless, defend and indemnify the City, its officers, agents, employees, and volunteers from and against any and all claims, damages, losses, and expenses including attorneys' fees arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Contractor, except where caused by the active negligence, sole negligence, or willful misconduct of the City. To the fullest extent permitted by law, Contractor shall immediately defend and indemnify the City and its officers, agents, employees, and volunteers from and against any and all liabilities, regardless of nature or type, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, or its employees, agents, or subcontractors.
Liabilities subject to the duties to defend and indemnify include, without limitation, any and all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys' fees; court costs; and costs of alternative dispute resolution. Contractor's obligation to General Conditions/EJ/TE 01-19-11 6 of 13
indemnify applies unless it is finally adjudicated that the liability was caused by the sole active negligence or sole willful misconduct of an indemnified party.
(b) If this Contract is not a contract for design professional services subject to California Civil Code Section 2782.8(a) or Contractor is not a design professional as defined in California Civil Code Section 2782.8(b)(2), Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees and volunteers from any and all claims, suits, or actions of every name, kind and description, brought forth on account of injuries to or death of any person or damage to property arising from or connected with the willful misconduct, negligent acts, errors or omissions, ultra-hazardous activities, activities giving rise to strict liability, or defects in design by Contractor or any person directly or indirectly employed by, or acting as, the agent for Contractor in the performance of this Contract, including the concurrent or successive passive negligence of the City, its officers, agents, employees or volunteers.
(c) It is understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Contractor shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by the City, the City and its officers, agents, employees, and volunteers, immediately upon tender to Contractor of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination that persons other than Contractor are responsible for the claim does not relieve Contractor from its separate and distinct obligation to defend under this Section 15. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent counsel if Contractor asserts that liability is caused in whole, or in part, by the negligence or willful misconduct of an indemnified party. (d) The review, acceptance or approval of the Contractor's work or work product by any indemnified party shall not affect, relieve or reduce the Contractor's indemnification or defense obligations. This Section 15 survives completion of the services or the termination of this Contract.
The provisions of this Section 15 are not limited by, and do not affect, the provisions of this Contract relating to insurance.
(e) Acceptance of insurance certificates and endorsements required under this Contract does not relieve Contractor from liability under this Section
15. This Section 15 shall apply whether or not such insurance policies are determined to be applicable to any such damages or claims for damages.
16. Safety. Contractor acknowledges that the City is committed to the highest standards of workplace safety. Contractor shall perform all work hereunder in full compliance with applicable local, state and federal safety requirements including but not limited to Occupational Safety and Health Administration requirements, and shall assume sole and complete General Conditions/EJ/TE 01-19-11 7 of 13
responsibility for the safety of Contractor's employees and any subContractor's employees. If a death, serious personal injury or substantial property damage occurs in connection with the performance of this Contract, Contractor shall immediately notify the City by telephone.
17. Insurance. Insurance requirements are set forth in Exhibit F to this Contract. Contractor shall abide by the insurance requirements set forth in said Exhibit F.
18. Non-Liability of Officials and Employees of the City. No official or employee of the City shall be personally liable for any default or liability under this Contract.
19. Compliance with Laws. Contractor shall comply with all federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals, with respect to this Contract, including without limitation environmental laws, employment discrimination laws and prevailing wage laws. Compliance under this provision includes compliance with all provisions of the Richmond Municipal Code ("Municipal Code"), including Chapters 2.50, 2.52, 2.56, and 2.60, if applicable.
Contractor acknowledges that under § 2.60.070 of the Municipal Code ("Living Wage Ordinance"), Contractor shall promptly provide to City documents and information verifying its compliance with the Living Wage Ordinance. Also as prescribed in § 2.60.070, Contractor shall notify each of its affected employees with regards to the wages that are required to be paid pursuant to the Living Wage Ordinance.
Contractor shall comply with § 2.28.030 of the Municipal Code, obligating every Contractor or subcontractor under a contract or subcontract with the City for public work or for goods or for services to refrain from discriminatory employment or subcontracting practices on the basis of race, color, sex, sexual orientation, religious creed, national origin or ancestry of any employee, any applicant for employment or any potential subcontractor.
Contractor acknowledges that the City's Drug Free Workplace Policy, Violence in the Workplace Policy and the Policy Against Workplace Harassment, are available on the City's website at
http://www.ci.richmond.ca.us/workplacepolicies. Contractor agrees to abide by the terms and conditions of said policies.
20. Limitations upon Subcontracting and Assignment. This Contract binds the heirs, successors, assigns and representatives of Contractor. The Contractor shall not enter into subcontracts for any work contemplated General Conditions/EJ/TE 01-19-11 8 of 13
under this Contract and shall not assign this Contract, nor any portion hereof or monies due or to become due, without the prior written consent of the City Council or its designee.
Contractor acknowledges that the services which Contractor shall provide under this Contract are unique, personal services which, except as otherwise provided herein, Contractor shall not assign or sublet to any other party without the prior written approval of City, which approval may be withheld in City's sole and absolute discretion. In the event that City, in writing, approves any assignment or subletting of this Contract or the retention of subcontractors by Contractor, Contractor shall provide to City upon request copies of each and every subcontract contract prior to the execution thereof by Contractor and subcontractor. Any assignment by Contractor of any or all of its rights under this Contract without first obtaining City's prior written consent shall be a default under this Contract.
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor (if applicable), or of the interest of any general partner or joint venturer or syndicate member if Contractor is a partnership or joint-venture or syndicate, which shall result in a change of control of Contractor, shall be deemed an assignment. For this purpose, control shall mean fifty percent or more of the voting power or twenty-five percent or more of the assets of the corporation, partnership or joint-venture.
21. Integration. This Contract constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any previous oral or written agreement; provided, however, that correspondence or documents exchanged between Contractor and City may be used to assist in the interpretation of the Exhibits to this Contract.
22. Modifications and Amendments. This Contract may be modified or amended only by a change order or Contract Amendment executed by both parties and approved as to form by the City Attorney.
23. Conflicting Provisions. In the event of a conflict between these General Conditions and those of any Exhibit or attachment hereto, these General Conditions shall prevail; provided, however, that any Special Conditions as set forth in Exhibit E shall prevail over these General Conditions. In the event of a conflict between the terms and conditions of any two or more Exhibits or attachments hereto, those prepared by City shall prevail over those prepared by the Contractor, and the terms and conditions preferred by the City shall prevail over those preferred by the Contractor.
24. Non-exclusivity. Notwithstanding any provision herein to the contrary, the services provided by Contractor hereunder shall be non-exclusive, and General Conditions/EJ/TE 01-19-11 9 of 13
City reserves the right to employ other Contractors in connection with the project.
25. Exhibits. All Exhibits hereto are made a part hereof and incorporated herein by reference; provided, however, that any language in Exhibit A which does not pertain to the project description, proposal, scope of services, or method of compensation (as applicable), or any corresponding responsibilities of City, shall be deemed extraneous to, and not a part of, this Contract.
26. Force Majeure. Neither party hereto shall be considered in default in the performance of its obligations hereunder to the extent that the performance of such an obligation is prevented or delayed by reason of acts of God, strikes, boycotts, lock-outs, inability to procure materials not related to the price thereof, failure of power, restrictive governmental laws and regulations enacted after the date of this Contract, riots, civil unrest, acts of terrorism, insurrection, war, declaration of a state or national emergency or other reasons of a like nature not within the reasonable control of such party.
27. Time of the Essence. Time is of the essence of this Contract. Contractor and City agree that any time period set forth in Exhibit A represents their best estimates with respect to completion dates and both Contractor and City acknowledge that departures from the schedule may occur.
Therefore, both Contractor and City will use reasonable efforts to notify one another of changes to the schedule. Contractor shall not be responsible for performance delays caused by others, or delays beyond Contractor's control, and such delays shall extend the times for performance of Contractor's work.
28. Confidentiality. Contractor agrees to comply with, and to require its employees, agents and partners to comply with, all applicable State or Federal statutes or regulations respecting confidentially, including but not limited to, the identity of persons served under this Contract, their records, or services provided them, and assures that:
All applications and records concerning any individual made or kept by Contractor or any public officer or agency in connection with the administration of or relating to services provided under this Contract will be confidential, and will not be open to examination for any purposes not directly connected with the administration of such service.
No person will publish or disclose or permit or cause to be published or disclosed, any list of persons receiving services, except as may be required in the administration of such service.
General Conditions/EJ/TE 01-19-11 10 of 13
29. Third Parties. Nothing herein shall be interpreted as creating any rights or benefits in any third parties. For purposes hereof, transferees or assignees as permitted under this Contract shall not be considered "third parties."
30. Governing Law. This Contract shall be construed in accordance with the law of the State of California without regard to principles of conflicts of law.
This Contract is made in Contra Costa County, California, and any action relating to this Contract shall be instituted and prosecuted in the courts of Contra Costa County, California.
31. Nonrenewal. Contractor understands and agrees that there is no representation, implication, or understanding that the services provided by Contractor under this Contract will be purchased or renewed by the City under a new contract following expiration or termination of this Contract, and waives all rights or claims to notice or hearing respecting any failure by City to continue the purchase of all or any failure to continue purchase of all or any such services from Contractor.
32. Claims. Any claim by Contractor against City hereunder shall be subject to Government Code §§ 800 et seq. The claims presentation provisions of said Act are hereby modified such that the presentation of all claims hereunder to the City shall be waived if not made within six months after accrual of the cause of action.
33. Interpretation. This Contract shall be interpreted as if drafted by both parties.
34. Warranty. In the event that any product shall be provided to the City as part of this Contract, Contractor warrants as follows: Contractor possesses good title to the product and the right to transfer the product to City; the product shall be delivered to the City free from any security interest or other lien; the product meets any specifications contained herein; the product shall be free from material defects in materials and workmanship under normal use for a period of one (1) year from the date of delivery; and the product shall be fit for its intended purposes). Notwithstanding the foregoing, consumable and maintenance items (such as light bulbs and batteries) shall be warranted for a period of one hundred and eighty (180) days from the date of delivery. All repairs during the warranty period shall be promptly performed by Contractor, at Contractor's expense, including shipping.
35. Severability. In the event that any of the provisions or portions or applications thereof of this Contract are held to be unenforceable or invalid by any court of competent jurisdiction, City and Contractor shall negotiate an equitable adjustment in the provisions of the Contract with a view General Conditions/EJ/TE 01-19-11 11 of 13
toward effecting the purpose of this Contract, and the validity and enforceability of the remaining provisions or portions or applications thereof, shall not be affected thereby.
36. Authority. City warrants and represents that the signatory hereto (the Mayor of the City of Richmond or the City Manager) is duly authorized to enter into and execute this Contract on behalf of City. The party signing on behalf of Contractor warrants and represents that he or she is duly authorized to enter into and execute this Contract on behalf of Contractor, and shall be personally liable to City if he or she is not duly authorized to enter into and execute this Contract on behalf of Contractor.
37. Waiver. The waiver by City of any breach of any term or provision of this Contract shall not be construed as a waiver of any subsequent breach.
Inspections or approvals, or statements by any officer, agent or employee of the City relating to the Contractor's performance, or payments therefore, or any combination of these acts, shall not relieve the Contractor's obligation to fulfill this Contract as prescribed; nor shall the City be thereby stopped from bringing any action for damages or enforcement arising from any failure to comply with any of the terms and conditions of this Contract.
38. Possessory Interest. If this Contract results in the Contractor having possession of, claim to or right to the possession of land or improvements, but does not vest ownership of the land or improvements in the same person, or if this Contract results in the placement of taxable improvements on tax exempt land (Revenue and Taxation Code 107), such interest or improvements may represent a possessory interest subject to property tax, and Contractor may be subject to the payment of property taxes levied on such interest.
39. Performance and Final Acceptance.
Contractor represents that it is experienced, qualified, registered, licensed, equipped, organized and financed to perform the services under this Contract.
Contractor shall perform the services under this Contract with that degree of skill and judgment normally exercised by professional firms performing services of a similar nature in the State of California, and shall be responsible for the professional quality, technical accuracy and coordination of the services it performs under this Contract. In addition to the other rights and remedies which City may have, Contractor shall, at its own expense, correct any services which fail to meet the above standard.
General Conditions/EJ/TE 01-19-11 12 of 13
City shall provide Contractor an opportunity to cure errors and omission which may be disclosed during the review of submittals, with no increase in the authorized Contract Payment Limit. Should Contractor fail to make necessary corrections in a timely manner, such corrections shall be made by the City and the cost thereof shall be charged to Contractor.
If warranted, City shall determine, and Contractor may request such determination, that Contractor has satisfactorily completed performance of this Contract. Upon such determination, City shall issue to Contractor a written Notice of Final Acceptance, after which Contractor shall not incur further costs under this Contract. Contractor shall respond to such Notice of Final Acceptance by executing and submitting to City a Release and Certificate of Final Payment.
40. Survival. The rights and obligations of the parties which by their nature survive termination or completion of the services covered by this Contract shall remain in full force and effect after termination or completion.
General Conditions/EJ/TE 01-19-11 13 of 13
For the Contract between the City of
Richmond and
Mark43
EXHIBITE
SPECIAL CONDITIONS
The General Conditions are hereby amended to include the following modifications and/or provisions (if applicable):
See next page
EXHIBITE
SPECIAL CONDITIONS
These modifications and/or provisions (the "Special Conditions") are hereby incorporated into the Contract between the City of Richmond and Mark43 dated as of _ _ (the "Base Contract" and such date, the "Effective Date") In the event of a conflict or inconsistency between these Special Conditions and either the Standard Contract or Exhibits A-F of the Contract, these Special Conditions shall prevail. In the event of a conflict or inconsistency between these Special Conditions and Exhibit G (License Provisions) of the Contract, Exhibit G shall prevail.
1. Exhibit B - Payment Provisions
Paragraph 5 is hereby repealed and replaced with the following language:
"During the Regular Usage Period (after the launch of RMS and/or CAD, as applicable), the City will pay Mark43 an annual subscription fee of $144,813.31 for RMS and an annual subscription fee of $154,186.69 for CAD (which may be prorated through July 1 during the year(s) in which the Regular Usage Period commences). The first (prorated) subscription fees for RMS and CAD shall be payable in full within 45 days of the respective RMS and CAD product launches. During each subsequent year, the annual subscription fees for the period from July 1 of that year through June 30 of the following year shall be due in advance annually on July 1, within 45 days of receipt of an invoice. Notwithstanding the foregoing, within thirty (30) days after the Effective Date, the City shall pay Mark43 an initial deposit of $25,000, which shall be credited against the first subscription fee that becomes due following product launch."
2. Exhibit D- General Terms and Conditions
Paragraph 3 ("City Property") is hereby repealed and replaced with the following language:
"3. Intentionally Omitted."
3. Exhibit D - General Terms and Conditions
Paragraph 4 ("Trademarks, Copyrights and Rights in Data") is hereby repealed and replaced with the following language:
"4. Intentionally Omitted. Refer to Exhibit F - Software License Provisions." Shal
4. The following language shall be added to Paragraph 6 ("Services"): "Notwithstanding the foregoing, the City pay be obligated to pay the Contractor for all work performed prior to receipt of notice of City's intention to reduce the scope of work."
5. Exhibit D - General Terms and Conditions
Tal me atigular call be posed apical i regarding this get natal not be deed to
6. Exhibit D - General Terms and Conditions
The following language shall be added to Paragraph & ("Changes and Extra Work"): "Nothing contained in thriction shall be deemed to waive, alter, or otherwise impes pares is and ories on awe did 9 7. Exhibit D- General Terms and Conditions
Paragraph 13 ("Termination in the Event of Default) is hereby repealed and replaced with the following language:
"13. Intentionally Omitted. Refer to Paragraph 12 - Termination and Exhibit F - Software License Provisions (Section 4)."
8. Exhibit D - General Terms and Conditions
Paragraph 15 ("Indemnification") is hereby repealed and replaced with the following language:
"15. Intentionally Omitted. Refer to Exhibit F - Software License Provisions."
9. Exhibit D- General Terms and Conditions
The following language is hereby added to Paragraph 20 ("Limitations upon Subcontracting and Assignment"): "To the extent City's consent is required for an assignment or transfer, such consent shall not be unreasonably withheld."
10. Exhibit D- General Terms and Conditions
Paragraph 24 ("Non-Exclusivity") is hereby repealed and replaced with the following language:
"24. Intentionally Omitted."
11. Exhibit D- General Terms and Conditions
Paragraph 27 ("Time is of the Essence") is hereby amended as follows:
• "Time of the Essence" is replaced with the phrase "Time Estimates." • "Time is of the essence of this Contract" is deleted.
12. Exhibit D - General Terms and Conditions
Paragraph 34 ("Warranty") is hereby repealed and replaced with the following language:
"34. Intentionally Omitted. Refer to Exhibit F - Software License Provisions." 10 For the Contract between the City of
Richmond and •
Mark43
EXHIBIT F
INSURANCE PROVISIONS
During the entire term of this Contract and any extension or modification thereof, the CONTRACTOR shall keep in effect insurance policies meeting the insurance requirements specified in the insurance provisions which are attached hereto and incorporated herein by this reference.
EXHIBIT G
SOFTWARE LICENSE PROVISIONS
These Software License Provisions (the "License Agreement") are incorporated into the Contract between the City of Richmond and Mark43, Inc. dated as of (the "Base Contract" and such date, the "Effective Date"). The License Agreement and Base Contract, together with all other Exhibits to the Base Contract, shall collectively be referred to as the "Agreement". In the event of a conflict or inconsistency between this License Agreement and the Base Contract or any other Exhibits to the Base Contract, the provisions of this License Agreement shall prevail.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1) DEFINITIONS.
Defined Terms. Defined terms have the meanings set forth in this Article 1) (Definitions) and elsewhere in this Agreement when capitalized, and may be read in singular, plural or an alternative tense as the context requires.
"Affiliate" means, with respect to any entity, any other entity who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
C) "Applicable Law" means, with respect to any party, any federal, state or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any international, federal, state or local court, administrative agency or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such party or any of its properties, assets or business operations. "Applications" means the Records Management System and Computer Aided Dispatch, as described in Exhibit A (Service Plan).
e) "Authorized User" means an employee or independent contractor of the City of Richmond Police Department (solely to the extent such contractor is providing services to the City of Richmond Police Department), who has been authorized by Subscriber and/or City of Richmond Police Department to use the SaaS Services.
"Documentation" means the user guides and user manuals for the Saas Services that Mark43 provides to Subscriber.
"Integration Control Document" means an agreement, if applicable, governing any integrations with Third Party Applications.
h) "Intellectual Property Rights" means all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation, (i) all patent rights, including any rights in pending patent applications and any related rights; (i) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress or other proprietary trade designations, including all registrations and applications therefor (iv) all rights throughout the world to proprietary know-how, trade secrets and other confidential information, whether arising by law or pursuant to any contractual obligation of non- disclosure; and (v) all other rights covering industrial or intellectual property recognized in any jurisdiction. "Professional Services" means the evaluation, consultation, implementation, customization, configuration and other services offered by Mark43 in connection with the Saas Services. "Saas Services" means the Applications, Software, and related software-as-a-service, hosting, maintenance and/or support services made available by Mark43 for remote access and use by Subscriber, including any Documentation thereto.
11 "Services" means the services provided or required to be provided by or through Mark43, including without limitation, SaaS Services and Professional Services. "Software" means the object code version of Mark43's computer software and all Updates made available by Mark43 to Subscriber under this Agreement. m) "Statement of Work" means a detailed plan of work to be agreed by the Parties in conjunction with this Agreement.
"Subscriber Data" means all data, information, content and other materials stored or transmitted by Subscriber and any Authorized User through the SaaS Services (i) in their user accounts; and (il) on a third party service to which Subscriber and any Authorized User facilitates Mark43's access via an application programming interface or other means (the "Third Party Application"), excluding any Third Party Data.
"Subscriber Party" means Subscriber, the City of Richmond Police Department, any Authorized User and any Affiliate of any of the foregoing. "Third Party Components" means any components of the Saas Service from time to time that are provided by third parties.
"Third Party Data" means any data, excluding Subscriber Data, owned by a third party (i.e., other than Mark43) that Subscriber or Authorized Users access via the SaaS Service. "Third Party Provider" means third parties, including other vendors, state agencies and local agencies, that control products and/or databases with which Mark43 SaaS Services are to be interfaced.
"Updates" means any and all new releases, new versions, patches and other updates for the Saas Services that Mark43 makes generally available without additional charge to its other subscribers of the Saas Services.
"Vendors" means third parties with whom Mark43 contracts to provide components of the SaaS Services, and may include without limitation, Amazon Web Services (for platform hosting) and Google (for Google Maps).
u) "Website" means any Internet website through which Mark43 provides the SaaS Services under this Agreement.
SOFTWARE AND SERVICES.
a) SaaS Services. During the Term, Mark43 hereby grants a non-exclusive, non- transferable, non-sublicensable license to Subscriber and its Authorized Users to access and use the Saas Services through the Website for Subscriber's internal purposes and in accordance with the terms and conditions of this Agreement. Mark43 will be responsible for hosting the Website, and Subscriber and its Authorized Users will be responsible for obtaining internet connections and other third party software and services necessary for it to access the Website. Subscriber will be responsible to Mark43 for compliance with the restrictions on use and other terms and conditions of this Agreement by any of its Authorized Users.
Professional Services. Mark43 offers Professional Services in connection with the Saas Services as further described in Schedule A. With Subscriber's consent, Mark43 may subcontract the performance of certain Professional Services. To the extent any Professional Services involve the development of any customization to the SaaS Services, all Intellectual Property Rights to such customization will be solely owned by Mark43 and will be deemed to be included in the definition of Saas Services and licensed to Subscriber on the terms set forth herein.
C) Access to Documentation. Mark43 will provide Subscriber via the Website or other means with access to the Documentation, as may be updated from time to time. Subscriber may print copies of, use, and permit its Authorized Users to use, the Documentation solely in connection with the use of the SaaS Services.
12 d) Support Services. Mark43 will provide a telephone-based help desk through which it will respond to inquiries about the SaaS Services from Subscriber via telephone from 7 AM to 7 PM (PST), Mondays through Fridays (excluding U.S. Federal holidays). Mark43 also provides a 24/7 email based help desk for the Saas Services as set forth in Schedule A
Restrictions on Use. Subscriber and its Authorized Users will not (and will not permit any third party to): (i) share Subscriber's or any Authorized User's login credentials; (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the SaaS Services or of any files contained in or generated by the Saas Services; (iii) copy, modify, adapt or translate the SaaS Services or the Third Party Data, or otherwise make any use, resell, distribute or sublicense the SaaS Services or the Third Party Data other than in connection with this Agreement; (iv) make the SaaS Services available on a "service bureau" basis or allow any third parties to use the Saas Services; (v) disclose the SaaS Services or any of its components to third parties; (vi) remove or modify any proprietary marking or restrictive legends placed on the SaaS Services or the Third Party Data; or (vil) use the Saas Services or the Third Party Data in violation of any Applicable Law.
Title. As between Mark43 and Subscriber, Mark43 retains title to and ownership of the SaaS Services, including all Intellectual Property Rights relating thereto. Mark43's licensors retain title to Rights relating thereto. Subscriber will have no rights with respect to the Saas Services, the Third Party Data or the Third Party Components other than those expressly granted under this Agreement. Any suggestions for changes or improvements to Services that Subscriber provides to Mark43, whether solicited by Mark43 or not, shall be owned by Mark43 and Subscriber hereby irrevocably assigns, and shall assign, to Mark43 all right, title, and interest in and to such suggestions. Mark43 shall have no obligation to incorporate such suggestion into its products or Services. g) Subscriber Data. As between Mark43 and Subscriber, Subscriber owns and shall retain all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Subscriber Data, including obtaining all rights and consents necessary to share the Subscriber Data with Subscriber hereby grants to Mark43 an irrevocable, worldwide, royalty free, non-exclusive, transferable, sublicensable license to use the Subscriber Data to: provide the SaaS Services to Subscriber and other Mark43 subscribers; analyze the Subscriber Data in anonymized and/or aggregate form in order to operate, maintain, manage, and improve the SaaS Services, create new products and services, and share and/or license this aggregate data to Affiliates, agents, business partners, and other third parties; for Mark43's internal purposes to improve the Applications, Software, and related services, and any other uses disclosed in or related to performance under the Agreement or any statement of work.
Third Party Applications. If Subscriber installs or enables a Third Party Application for use with the Saas Services, Subscriber grants (and will cause the applicable third party to grant) Mark43 permission to access Subscriber Data stored on that Third Party Application as required for the interoperation of that Third Party Application with the SaaS Services. In no event will Mark43 be responsible for any Third Party Application, or for any failure of a Third Party Application to properly interoperate with the SaaS Services. If Mark43 receives information that a Third Party Application may violate any Applicable Laws or Third Party rights, Subscriber will, promptly upon receiving notice of the foregoing from Mark43, disable any connection between such Third Party Application and the SaaS Services to resolve the potential violation (and if Subscriber fails to promptly disable such connection, Mark43 shall have the right to do so).
In addition, in the event that Subscriber fails to properly obtain the grant of rights to Mark43 to access and use Third-Party Data as required for the interoperation of that Third-Party Application, Subscriber shall defend, indemnify, and hold harmless Mark43 from any and all claims based on Mark43's use of such Third- Party Application.
Third Party Components.
i) Usage of Third Party Components. Mark43 may use Vendors to subcontract the performance of its duties and obligations hereunder and to provide certain functions of the Services, including without limitation, hosting and data analysis. Certain Vendor policies and terms and conditions of service shall apply to the Services. Such terms, 13 or URL locator addresses for such terms, will be provided in writing from time to time, inconsistency or conflict between the Additional Terms and the terms of this Agreement, such Additional Terms shall govern with respect to Subscriber's use of the applicable Third Party Component.
ii) DISCLAIMER REGARDING THIRD PARTY COMPONENTS. MARK43, NOT
BEING THE PROVIDER OR MANUFACTURER OF THE THIRD PARTY
COMPONENTS, NOR THE PROVIDERS' OR MANUFACTURERS' AGENT, MAKES
NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH
RESPECT TO THE THIRD PARTY COMPONENTS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
Third Party Data. Subscriber shall access and use the Third Party Data in accordance with the terms and conditions of the agreement between the Subscriber and the provider of such Third Party Data or the Additional Terms applicable to Third Party Components, as applicable. MARK43, NOT
BEING THE PROVIDER OR MANUFACTURER OF THE THIRD PARTY DATA, NOR THE PROVIDERS'
OR MANUFACTURERS' AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND
WHATSOEVER WITH RESPECT TO THE THIRD PARTY DATA AND DISCLAIMS ANY SUCH k) Agreements with Third Party Providers. Subscriber, and not Mark43, is solely drei any regried are rents a lot often no one of Third Part Providers.
1) Security Obligations. Subscriber agrees it and its Authorized Users shall securely manage their respective passwords) for access to the SaaS Service. Subscriber agrees it shall notify Mark43 promptly in the event it becomes aware of any unauthorized access or use of the Saas Service, or of any of its or its Authorized Users passwords or accounts. Unless expressly stated otherwise in this Agreement, a single username or password may not be used by more than one (1) Authorized User.
Subscriber shall comply with all applicable local, state, federal and regional or other laws and regulations transmission of technical or personal data. Subscriber agrees to (a) provide true, accurate, current and complete registration data for each account it creates via the SaaS Service, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete. m) Changes to Services. Mark43 may make changes and Updates to its Services, provided that it does not materially derogate the overall quality of the Services. Mark43 does not guarantee that the Services are or will remain compatible with any particular third party software or equipment, and may, upon written notice, terminate its support for, any software or equipment of Subscriber that Mark43 determines are incompatible with the operation of the Services.
FEES AND PAYMENT TERMS. Subscriber will pay Mark43 fees as stated in Section of the Base Contract.
. 4) TERM.
Term. The Term of this Agreement begins on April 30, 2017 and will continue until June 30, 2022, unless and until terminated in accordance with Section 4(b) (the "Term").
Termination. Either party may terminate this Agreement upon written notice to the other party, if the other party breaches a material term of this Agreement and such breach remains uncured for 14 c) The City may terminate this Agreement if the legislature fails to appropriate funds for the general category of services provided hereunder.
d) Effect of Termination. In the event of any termination or expiration of this Agreement, i) Subscriber will pay Mark43 all amounts payable hereunder as of the effective date of termination or expiration;
il) all rights and licenses granted hereunder to Subscriber (as well as all rights granted to any Authorized Users of Subscriber) will immediately cease, including but not limited to all use of the Saas Services;
ili) Mark43 will provide records to Subscriber in accordance with its transition assistance services ("Transition Assistance") as set forth in Schedule B; and iv) Subscriber will, upon written request of Mark43, either return to Mark43 or provide Mark43 with written certification of the destruction of, all documents, computer files and other materials containing any Confidential Information of Mark43 that are in Subscriber's possession or controls
e) Survival. The following provisions will survive any termination or expiration of this Agreement: Section 2(g) ("Subscriber Data"), Séction 2(i) ("Third Party Components"), Section 2(i) (Third Party Data"), Section 4(d) ("Effect of Termination"), Section 5 ("Confidentiality"), Section 6(b) ("Disclaimer"), Section 7 (Limitation of Liability'), Section 8 (Indemnitication"), Section 9 (Miscellaneous Provisions), Exhibit A - Section 4 ("Transition Assistance") and this Section 4(e) ("Survival"). f) If Mark43 reasonably determines that Subscriber's use of the Services either: (i) fails to comply with the Restrictions on Use in Section 2.5; (i) poses a security risk to the Services or any third party, (iii) creates or is likely to create an adverse impact on Mark43's systems, the Services, or the systems or content of any other subscriber; or (iv) subjects Mark43 or its Affiliates to possible liability, then Mark43 may immediately upon notice temporarily suspend Subscriber's and any Authorized User's right to access any portion or all of the Services, pending remedial action by Subscriber, or after a period of 30 days, terminate the Services. 5) CONFIDENTIALITY.
Definition of Confidential Information. For the purposes of this Agreement, "Confidential Information" means: (a) with respect to Mark43, the SaaS Services and any and all source code relating thereto, as well as Documentation and non-public information or material regarding Mark43's legal or business affairs, financing, customers, properties or data, and (b) with respect to Subscriber, any non-public information or material regarding Subscriber's legal or business affairs, financing, customers, properties or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the "Receiving Party"); (i) is documented as being known to the Receiving Party prior to its disclosure by the other party (the "Disclosing Party"); (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who did not receive it, directly or indirectly, from the disclosing party.
Use and Disclosure of Confidential Information. The Receiving Party will, with respect to any Confidential Information disclosed by the Disclosing Party before or after the Effective Date: (i) use such Confidential Information only in connection with the Receiving Party's performance of this Agreement; (il) subject to Section 5(d) below, restrict disclosure of such Confidential Information within the Receiving Party's organization to only those of the Receiving Party's employees and independent contractors who have a need to know such Confidential Information in connection with the Receiving Party's performance of this Agreement and (i) except as provided herein, not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so. 15 Protection of Confidential Information. The Receiving Party Will protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
Employee and Independent Contractor Compliance. The Receiving Party will, prior to obligations hereunder with respect to such Confidential Information.
Required Disclosures. If a party is requested to disclose any of the other party's Confidential Information pursuant to any judicial or governmental order, that party will not disclose the Confidential Information without first giving the other party written notice of the request and sufficient opportunity to contest the order, to the extent such notice and opportunity to contest may be lawfully given.
If one party is nonetheless legally compelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the Confidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal. Without limiting the foregoing, Subscriber shall notify Mark43 of any requests for records relating to Mark43 (including, without limitation, user guides or Documentation, or documents submitted by Mark43 in response to the RFP) within 24 hours of receipt of the request. Notwithstanding the foregoing, Mark43 has no implicit or explicit obligation to (i) challenge, oppose or defend against any request seeking a judicial or governmental order for the disclosure of Confidential Information of a Subscriber Party, or information of Mark43 relating to any Subscriber Party, or (i) to seek a protective order regarding the same, in each case unless and until Subscriber or any Subscriber Party agrees to indemnify and hold harmless Mark43, its Affiliates, and each of their officers, directors, managers, shareholders, members and employees from all claims, liabilities, costs and expenses (including without limitation, reasonable attorneys' fees and expert and consulting fees), incurred or expended by Mark43 in connection with therewith. Mark43 reserves the right to charge Subscriber or Subscriber Party for labor, costs and other expenses in connection with assisting Subscriber Party with a third party discovery request.
f) Information Collected Through SaaS Services. Subscriber is solely responsible for compliance with applicable laws related to the manner in which Subscriber chooses to use the Services, including Subscriber's transfer and processing of Subscriber Data. Subscriber understands and agrees that when it uses certain features of the SaaS Services, certain information and data may be collected from Authorized Users, including monitoring and recording activity, and tracking physical location, which may include personal identifying information. Subscriber agrees that Mark43 may use such information to (i) provide more effective Services, (i) to develop and test its Services, (i) to aggregate such information and combine it with that of other Users, and (iv) to use anonymous aggregate data to improve the Services or for marketing, research or other business purposes. Provision of Services may involve the disclosure of such information to Vendors or Affiliates on the condition that they agree to treat such information in a manner substantially in accordance with this Agreement. Subscriber may revoke its consent to Mark43's collecting and using such data at any time by written notice to Mark43; provided, however, that Subscriber agrees that such revocation of consent may impair or render impossible the Subscriber's use of the Saas Services.
6) REPRESENTATIONS AND WARRANTIES.
Power and Authority. Each party represents and warrants that it has the full right, power and authority to enter into this Agreement and to discharge its obligations hereunder and that the person signing this Agreement on behalf of the party has the authority to bind that party. Subscriber represents ind warrants that it has obtained, and shall have. i
shall not, exceed any budget authority limitations, during the Term of this Agreement. 16 b) No Other Warranties. Use of the SaaS Services is not intended to be a substitute for the professional judgment of dispatchers, law enforcement officers, or first responders. The SaaS Services do not provide legal advice. Subscriber shall be responsible for all its own actions or failure to act in connection with the SaaS Services. Mark43 cannot guarantee that every error in the SaaS Services or problem raised by Subscriber will be resolved. THE SERVICES, THE THIRD PARTY COMPONENTS, AND THE THIRD PARTY DATA ARE PROVIDED "AS IS." EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6
NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SERVICES, THE THIRD
PARTY COMPONENTS, THE THIRD PARTY DATA OR THIS AGREEMENT AND HEREBY DISCLAIMS
ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF
TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE,
ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. To the extent that a party may not as a matter of Applicable Law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
LIMITATION OF LIABILITY.
a) Liability Exclusion. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR
ANY OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE FURNISHING,
PERFORMANCE, OR USE OR FAILURE OF OF THE SERVICES, THE THIRD PARTY COMPONENTS
OR THE THIRD PARTY DATA PROVIDED UNDER THIS AGREEMENT, REGARDLESS OF WHETHER
THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
Limitation of Damages. MARK43'S MAXIMUM LIABILITY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE SERVICES, THE THIRD PARTY COMPONENTS
PROVIDED HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT,
TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO MARK43 BY SUBSCRIBER DURING THE TERM OF THIS AGREEMENT. MARK43 SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATING TO THE THIRD- PARTY DATA.
Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 7(a) AND SECTION 7(b) SHALL NOT APPLY TO
DAMAGES ARISING FROM EITHER PARTY'S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT OR EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. 8) INDEMNIFICATION.
Indemnification by Mark43. Mark43 will defend, indemnify and hold harmless Subscriber and its Authorized Users, and each of their officers, directors, managers, shareholders, members and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney's fees and expert and consulting fees) in connection with any third party claim arising after the Effective Date that the use of the Saas Services (excluding any open source software) in accordance with this Agreement infringes or misappropriates intellectual property or proprietary rights of third party; provided, however, that the foregoing obligations shall be subject to Subscriber (a) promptly notifying Mark43 of the claim, (b) providing Mark43 with reasonable cooperation in the defense of the claim when Subscriber becomes aware and (c) providing Mark43 with sole control over the defense and negotiations for a settlement or compromise; provided, however, that Mark43 shall not enter into any such settlement without Subscriber's prior written consent, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Mark43 shall have no obligation with respect to a third party claim to the extent the third party claim arises from: (t) claims arising from acts of Subscriber or its users, employees or contractors; (u) claims brought by Subscriber or its Affiliates; (v) claims arising from the use of old versions software after receipt of modified or updated versions of software; (w) claims arising from the use of Third Party Applications, Third Party Components or Third Party Data; (x) use of the SaaS Services in combination with modules, apparatus, hardware, software, or services not authorized by Mark43 or contemplated for use with the SaaS Services; (y) use of the SaaS Services in a manner that is not in accordance with this Agreement or the Documentation; (z) the alteration or modification of the SaaS Services by a party other than Mark43, unless 17 such alterations and modifications were authorized by Mark43 or contemplated for use with the Saas Services.
Indemnification by Subscriber. Notwithstanding anything to the contrary herein or in the Base Contract, Subscriber will defend, indemnify and hold harmless Mark43 and its Affiliates, and each of their officers, directors, managers, shareholders, members and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney's fees and expert and consulting fees) in connection with (I) any third party claim arising from or relating to (i) any allegation that any data, information used in connection with the SaaS Services: (a) infringes or misappropriates any Intellectual Property Rights of a third party, or (b) violates any Applicable Laws; (i) the actual or alleged violation of Applicable Law by Subscriber, any Authorized User, or any Affiliate, employee, agent or independent contractor of Subscriber; or (iii) Subscriber's breach of this Agreement; provided, however, that the foregoing obligations shall be subject to Mark43 (x) promptly notifying Subscriber of the claim, (y) providing Subscriber with reasonable cooperation in the defense of the claim and (z) providing Subscriber with sole control over the defense and negotiations for a settlement or compromise; provided, however, that Subscriber shall not enter into any such settlement without Mark43's prior written consent, which consent will not be unreasonably withheld; (I) disabling a connection to a Third Party Application at Subscriber's request; (III) Subscriber's actions or failure to act, resulting in any third-party claim for personal injury or death, damage to personal property or reputation, environmental damage, interference with contract or employment, or violation of privacy; and (IV) any request pursuant to a judicial or governmental order or other similar process, including but not limited to a subpoena or FOIA request or discovery request, seeking the disclosure of any Subscriber Data or other information collected or maintained by Mark43 in connection with the SaaS Services. For the avoidance of doubt, and without limiting the foregoing, Subscriber hereby acknowledges that Mark43 shall have no implicit or explicit obligation to challenge, oppose or defend against any request described in Clause (IV) of this subsection unless and until Subscriber reaffirms that it will honor its indemnification obligations as provided herein.
9) MISCELLANEOUS.
a)
oi. her party i respect be faith open any are due one thi impossible by strike, fire, flood, governmental acts that are not caused by or within the control of the nonperforming party, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
Relationship of the Parties. The relationship of the parties established by this Agreement is that of independent contractors and nothing contained herein will be construed to (a) give any party any right or authority to create or assume any obligation of any kind on behalf of any other party or (b) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.
c) Cumulative Remedies. All remedies for breach of this Agreement are cumulative, and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
Entire Agreement. This Agreement supersedes all previous understandings, agreements and representations between the parties, written or oral and constitutes the entire agreement and understanding between the parties with respect to the subject matter thereof and incorporates all representations, warranties, covenants, commitments and understandings on which they have relied in entering into this Agreement, and, except as provided for herein, neither party makes any covenant or other commitment concerning its future action nor does either party make any promises, representations, conditions, provisions or terms related thereto.
18 mark43
Best and Final Offer (BaFO) for:
City of Richmond Police Department RFP
FULLY INTEGRATED CAD, RMS, MOBILE COMPUTING AND FIELD
REPORTING SYSTEM
Dated: February 6, 2017
City of Richmond Contact: Mark43, Inc. Contact:
Richmond Police Department Mark43, Inc.
ATTN: Eric Tam, Technology Supervisor Scott Crouch, Co-founder & CEO 1701 Regatta Blvd. 28 E 28th St., 12t Fl.
Richmond, CA 94804 New York, NY 10016
(510) 233-1214 (212) 651-9154
[email protected]
BEST AND FINAL OFFER mark43
RFP: Fully Integrated CAD, RMS, Mobile Computing and Field Reporting System City of Richmond Police Department - CA
•
February 6, 2017
Richmond Police Department
ATIN: Eric Tam, Technology Supervisor
1701 Regatta Bivd.
Richmond, CA 94804
Re: Best and Final Offer (BaFO) for Fully Integrated CAD, RMS, Mobile Computing and Field Reporting System To Eric Tam:
I would like to thank you and the entire team at Richmond Police Department for taking the time to meet with Mark43. We appreciate the opportunity given to see your operations first hand and discuss the needs of each department. We were able to assess Richmond Police Department's needs and feel confident our engineering and deployments team can meet expectations set forth in the RFP and during the proof of concept demo. The project tear in attendance at the demo would be working directly with your office if Mark43 is awarded the As requested, please find enclosed our Best and Final Offer for the Fully Integrated CAD, RMS, Mobile Computing and Field Reporting System RFP which closed on December 9, 2016.
Please feel free to contact me with any questions at (212) 651-9154 or [email protected].
Once again, I would like to thank you and the Richmond Police Department for your time and consideration.
Scott Crouch
CEO
28 E 28'h St, 12" Fl, New York, NY 10016 | www.mark43,com | (212) 651-9154 | [email protected] pg. 1
BEST AND FINAL OFFER mark43
RFP: Fully Integrated CAD, RMS, Mobile Computing and Field Reporting System City of Richmond Police Department - CA
Pricing
7.1 Base System
The vendor shall use the following chart to present their pricing proposal for the Department (for outside agency cost, please list in Section 7.3:
ITEM PRICE
Computer AidedDispatch (CAD) $154,186.69 / year
Records Management Software (RMS) $144,813.31/year
Mobile Computer Software Included in annual subscription fee quoted above
E911 Link Software Included in annual subscription fee quoted above
State Interface Software Included in annual subscription fee quated above
CAD and Records Mapping Software Included in annual subscription fee quoted above
Mobile Mapping Software Included in annual subscription fee quoted above
Property Bar Coding Software Included in annual subscription fee quoted above
Paging/Text Software Included in annual subscription fee quoted above
Field Reporting Software Included in annual subscription fee quoted above
Mugshot/Digital Imaging Software Included in annual subscription fee quated above
Cop Link Interface Software Included in annual subscription fee quated above
Cop Logic Interface Software Included in annual subscription fee quoted above
CrimeReport.com Interface or similar Public Included in annual subscription fee quoted Access Software above
p8. 2
BEST AND FINAL OFFER mark43
RFP: Fully Integrated CAD, RMS, Mobile Computing and Field Reporting System City of Richmond Police Department - CA
Bar Coding Equipment Included in annual subscription fee quoted above
Data Conversion/Migration Included in annual subscription fee quoted above
Vendor Specific Equipment (if any) Not applicable. Mark43 Systems are hardware independent. Mark43 will work
with The City of Richmond to identify
equipment that can be re-purposed to
leverage The City's investments.
Software Customization (from table below) Included in annual subscription fee quoted above
Database Software Included in annual subscription fee quoted above
Additional items or costs required by vendor's Not applicable. solution (if any, describe below this chart)
System Installation Included in annual subscription fee quoted above
Training Management System Included in annual subscription fee quoted above
Project Management Included in annual subscription fee quoted above
First Year Software Maintenance, Support, and Included in annual subscription fee quoted Updates above
Hardware Equipment $8,066.00/one time cost (WAIVED)
Interface Servers
TOTAL $299,000.00
*Sales tax is not to be included in the pricing, however the City is not exempt 9.5% will be added at the time of purchase. pg. 3
BEST AND FINAL OFFER mark43
RFP: Fully Integrated CAD, RMS, Mobile Computing and Field Reporting System City of Richmond Police Department - CA
7.2 Customization and Modification Costs
Detail all costs associated with software customizations and modifications required to meet the system requirements including interfaces.
ITEM PRICE
7.3 Additional Proposal Items
The following form shall be used to price additional optional items requested by the City as well as additional items or proprietary hardware the vendor may care to propose; also please list the • following agencies cost (Pinole, Hercules, El Cerrito, Kensington & San Pablo) for software licensing in this section.
ITEM PRICE
El Cerrito Police Department $46,170/yr
Mercury CAD and Cobalt RMS (includes support and maintenance) Hercules Police Department $25,515/yr
Mercury CAD and Cobalt RMS (includes support and maintenance) Kensington Police Department $12,150/yr
Mercury CAD and Cobalt RMS (includes support and maintenance) Pinole Police Department $28,440/yr
Mercury CAD and Cobalt RMS (includes support and maintenance) San Pablo Police Department $61,965/yr
Mercury CAD and Cobalt RMS (includes support and maintenance) pg. 4
BEST AND FINAL OFFER mark43
RFP: Fully Integrated CAD, RMS, Mobile Computing and Field Reporting System City of Richmond Police Department - CA
7.4 Additional Costs
Will the vendor commit to keeping the annual support cost the same for the first five years (the year quoted above plus four more)? If not, what price guarantee is the vendor willing to offer for the cost of future support years?
MARK43 RESPONSE:
Yes, Mark43 will honor the proposed annual subscription price for years 1-5 of the subscription agreement.
If the vendor's software is licensed per user or position, what will be the additional cost for adding future users and/or positions to the system? What is the procedure for doing so? What price guarantee is the vendor willing to offer for the cost of future years? MARK43 RESPONSE:
Mark43 is proposing an unlimited, site wide, subscription license package. There will be no additional fees incurred for adding users on throughout the duration of the subscription agreement for years 1-5. Mark43 will not increase greater than 5% per year for years 6-9.
Hardware Equipment
Mark43 recommends servers be installed to support The City of Richmond's required interfaces with Mercury CAD and Cobalt RMS. Mark43 will provide 2 interface servers as part of our proposed solution.
/ Integration Server Specifications
Servers only required for interfaces. Mark43 systems are cloud based and require no server Sever Purpose hardware on-premise.
Quantity 2
Manufacturer DELL
Model PowerEdge R530
Operating System RHEL 7, CentOs 7
Processor speed & Intel® Xeon® E5-2630 v4 2.2GHz,25M Cache, 8.0 GT/s QPI, Turbo,HT,10C/20T (85W) Max Mem 2133MHz
Cores per
processor
RAID 1 for H330/H730/H730P (2 HDDs or SSDs)
RAID Configuration PERC H330 RAID Controller
Memory (4) 8GB RDIMM, 2400MT/s, Single Rank, x8 Data Width Network Card On-Board Broadcom 5720 Quad Port 1Gb LOM
Screen Resolution 1024x768
(2) 480GB Solid State Drive SATA Read Intensive MLC 6Gbps Hard Drives 2.5in Hot-plug Drive, 3.5in HYB CARR, S3520 pg. 5