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AGREEMENT TERMINATION
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Please complete this form when the attached agreement is no longer in effect.
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Return form to the Sr. Deputy Clerk of the Coun it (M-30). CaH5HZ5a38 I`fymzz,4wLany
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The agreement with MQ*U )OAItO ,5C4f cZO ct�, No. 5 33
was completed on -11 1 S 1 W
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and final payment has been made.
Department: RDUck�
Signature:
Date: REG-2c'€°*.. 5 39,.30 S?e*Un
City of Santa Ana
Revised 8-7-03 Clerk of the Council
INSURANCE ON FILE A-2005-133A
WORK MAY PROCEED
UNTIL INSURANCE EXPIRES
7—(5—o�c
CLERK OF COUNCO
OATS, SOFTWARE LICENSE AGREEMENT
C-; PIb THIS SOFTWARE LICENSE AGREEMENT is made and entered into this
16 C� 16th Day of May, 2005, by and between MOSTWANTEDSOFTWARE, LLC, a California
;SCfv-) limited liability company ("Licensor"), and the City of Santa Ana, a charter city and
municipal corporation organized and existing under the Constitution and laws of the
State of California ( hereinafter "City").
A. Licensor has developed a software product entitled "The Law
Enforcement Administrative Database (L.E.A.D.)" to be used by law enforcement
agencies for the purposes of organizing and operating various administrative functions
for law enforcement agencies from a single database (the "Software").
B. City now desires to license the Software from Licensor, and Licensor
desires to license the Software to City, pursuant to the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, City and Licensor hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Acceptance" of Software means completion of the acceptance
testing process set forth in Section 3 of this Agreement.
1.2 "Agreement' includes this agreement and its Schedules and
Riders.
1.3 "Designated Environment' means the computer equipment and
software operating system described on Schedule B.
1.4 "Documentation" means the user, system and installation
documentation for the Software.
1.5 "Error" means a material failure of the Software to function in
conformity with the Specifications.
1.6 "License" means the license granted by Licensor to City to use the
Software and Documentation in accordance with the terms and conditions of this
Agreement.
1.7 "Licensed Copies" means the number of copies of the Software
and Documentation being licensed to the City.
Schedule B. 1.8 "Location(s)" means City's offices at the location(s) specified in
1.9 "Maintenance Agreement' means the Software Maintenance
Agreement between the parties effective as of the date of this Agreement.
1.10 "Price" means the License Fees City shall pay as specified in
Schedule A.
1.11 "Rider' refers to any riders attached to this Agreement, or any
subsequently prepared document which the parties agree in writing to be considered a
Rider.
1.12 "Schedule" refers to any schedule attached to this Agreement, or
any subsequently prepared document which the parties agree in writing to be considered
a Schedule.
1.13 "Specifications" means Licensor's specifications for the Software
as set forth on Schedule A.
1.14 "Target Date" means 6/30/2005, the date by which both parties
anticipate delivery of the Software.
1.15 "Warranty Period' means the one (1) year period commencing on
the date of Acceptance.
ARTICLE II
SOFTWARE LICENSE
2A License. Licensor hereby grants City a non-exclusive,
non -transferable license to (i) use the Software and Documentation solely for City's
internal operations at the Location(s) and on the Designated Environment, and (ii) copy
the Software and Documentation for archival or backup purposes only, provided that all
titles, trademarks, and copyright, proprietary and restricted rights notices shall be
reproduced in all such copies, and that all such copies shall be subject to the terms of
this Agreement.
2.2 Distribution. Except as explicitly provided herein, City shall not:
(i) make available nor distribute all or part of the Software or Documentation to any third
party by assignment, sublicense or by any other means; (ii) copy, adapt, reverse
engineer, decompile, disassemble, or modify, in whole or in part, any of the Software or
Documentation; or (iii) use the Software to operate in or as a time-sharing, outsourcing,
or service bureau environment, or in any way allow third party access to the Software.
ARTICLE III
INSTALLATION AND ACCEPTANCE
3.1 Installation and Acceptance. Licensor shall use reasonable
efforts to deliver the Licensed Copies of the Software and Documentation to the
Location(s) on or about the Target Date. City shall have sixty (60) days from the Delivery
Date to perform acceptance testing. City's Acceptance of the Software shall occur at the
earlier of City's operational use of the Software, or the expiration of sixty (60) days from
the Delivery Date without the provision of notice by City to Licensor of any Error(s). If
City provides notice to Licensor of any Error(s) and Licensor verifies the alleged Error(s),
the Software shall be accepted upon Licensor's correction of such Error(s).
ARTICLE IV
PRICE AND PAYMENT
4.1 Price. City shall pay the Price in accordance with the payment
plan set forth in Schedule A. Licensor shall invoice any additional costs reasonably
incurred by Licensor in the delivery of the Software as they are incurred. Payment of the
Price and additional costs shall be made by City to Licensor in full without any right of
set-off or deduction, and City shall pay the Price and such costs within Sixty (60) days
from the date of invoice.
4.2 Tax. City shall be responsible for any applicable sales or use
taxes or any value added or similar taxes payable with respect to the licensing of the
Software, or arising out of or in connection with this Agreement, other than taxes levied
or imposed based upon Licensor's income. In the event that Licensor pays any such
taxes on behalf of City, Licensor shall invoice City for such taxes and City agrees to pay
such taxes in accordance with this Agreement.
4.3 Interest. Failure by City to pay any amounts invoiced under this
Agreement in full in accordance with this Agreement shall make City liable to pay
Licensor interest at the rate of one and a half percent (1.5%) per month on the remaining
amount due, or at the highest amount permitted by applicable law such interest to
accrue on a daily basis after as well as before any judgment relating to collection of the
amount due.
ARTICLE V
PROPRIETARY RIGHTS
5.1 Proprietary Rights. City acknowledges and agrees that the
copyright, patent, trade secret, and all other intellectual property rights of whatever
nature in the Software, Documentation and Specifications are and shall remain the
property of Licensor, and nothing in this Agreement should be construed as transferring
any aspects of such rights to City or any third party.
ARTICLE VI
CONFIDENTIALITY
6.1 Confidential Information. The term "Confidential Information"
shall refer to the Software, Documentation, Specifications, and terms and conditions of
this Agreement. City acknowledges the confidential and proprietary nature of the
Confidential Information and agrees that it shall not reveal or disclose any Confidential
Information for any purpose to any other person, firm, corporation or other entity, other
than City's employees with a need to know such Confidential Information to perform
employment responsibilities consistent with City's rights under this Agreement. City shall
safeguard and protect the Confidential Information from theft, piracy or unauthorized
access in a manner at least consistent with the protections City uses to protect its own
most confidential information. City shall inform its employees of their obligations under
this Agreement, and shall take such steps as may be reasonable in the circumstances,
or as may be reasonably requested by Licensor, to prevent any unauthorized disclosure,
copying or use of the Confidential Information. City acknowledges and agrees that in the
event of the City's breach of this Agreement, Licensor will suffer irreparable injuries not
compensated by money damages and therefore shall not have an adequate remedy at
law. Accordingly, Licensor shall be entitled to a preliminary and final injunction without
the necessity of posting any bond or undertaking in connection therewith to prevent any
further breach of these confidentiality obligations or further unauthorized use of
Confidential Information. This remedy is separate and apart from any other remedy
Licensor may have.
6.2 Unauthorized Disclosure. City shall notify Licensor immediately
upon discovery of any prohibited use or disclosure of the Confidential Information, or any
other breach of these confidentiality obligations by City, and shall fully cooperate with
Licensor to help Licensor regain possession of the Confidential Information and prevent
the further prohibited use or disclosure of the Confidential Information.
ARTICLE VII
WARRANTY
7.1 Operation. Licensor represents to City that: (i) during the
Warranty Period, the Software shall operate without any Errors; and (ii) upon notification
to Licensor during the Warranty Period of any Errors, Licensor will, during its normal
business hours and at no cost to City, use reasonable efforts to correct such Errors
which are reproducible and verifiable by Licensor, excluding any Errors caused by uses
of the Software which were not in accordance with the Specifications.
7.2 Remedy. City agrees and acknowledges that Errors may occur in
the Software. City is responsible for establishing a 48-hour backup of all data and other
procedures and controls reasonably appropriate to maintain City's data and the integrity
and continuity of City's operations. In the event that City notifies Licensor of an Error
during the Warranty Period, Licensor's sole liability, and City's sole remedy, will be
Licensor's use of reasonable efforts to correct such Errors.
7.3 Warranty Disclaimer. THE WARRANTY SET FORTH IN THIS
SECTION 7 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY
LICENSOR. LICENSOR EXPRESSLY DISCLAIMS, AND CITY HEREBY EXPRESSLY
WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET
CITY'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED OR ERROR -FREE, OR THAT ERRORS IN THE SOFTWARE WILL
BE CORRECTED. LICENSOR'S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES
OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE INSTALLATION, USE OR PERFORMANCE OF THE
SOFTWARE. THE PARTIES AGREE THAT THE SOFTWARE'S FAILURE TO
PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS SHALL NOT BE
rd
CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES
CONTAINED HEREIN. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE
ENTIRE RISK OF THE SOFTWARE'S QUALITY AND PERFORMANCE IS WITH CITY.
ARTICLE VIII
INDEMNITY
8.1 Indemnification. Licensor hereby indemnifies City against any
claim that the Software, furnished and used within the scope of this Agreement, infringes
any U.S. registered copyright or patent, provided that: (i) Licensor is given prompt notice
of the claim; (ii) Licensor is given immediate and complete control over the defense
and/or settlement of the claim, and City fully cooperates with Licensor in such defense
and/or settlement; (iii) City does not prejudice in any manner Licensor's conduct of such
claim; and (iv) the alleged infringement is not based upon the use of the Software in a
manner prohibited under this Agreement, in a manner for which the Software was not
designed, or in a manner not in accordance with the Specifications.
8.2 Altered Version. Licensor shall have no liability for any claim of
infringement based on (i) the use of a superseded or altered version of the Software if
infringement would have been avoided by the use of a current or unaltered version of the
Software which Licensor made available to City; or (ii) the combination, operation or use
of the Software with software, hardware or other materials not furnished or approved by
Licensor.
8.3 Injunction. If a final injunction is obtained against the use of any
part of the Software by reason of infringement of a U.S. registered copyright or patent,
Licensor will, at its option and expense, either (i) procure for City the right to continue to
use the Software; or (ii) modify the Software so that it becomes non -infringing. The
foregoing states Licensor's entire obligation and liability with respect to the infringement
of any property right relating to Licencee's use of the Software.
8.4 Infringement. City hereby indemnifies Licensor against any claim
for (i) alleged infringement of any U.S. registered copyright or patent, arising out of the
use of the Software by City in any manner prohibited by this Agreement and (ii) any
claim related to or arising out of a transaction brought by any third party based on the
use of the Software.
ARTICLE IX
LIMITATION OF LIABILITY
9.1 Limitation. LICENSOR SHALL HAVE NO LIABILITY WITH
RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
ANY EVENT, THE LIABILITY OF LICENSOR TO CITY FOR ANY REASON AND UPON
ANY CAUSE OF ACTION SHALL BE LIMITED TO THE LESSER OF THE AMOUNT
PAID TO LICENSOR BY CITY UNDER THIS AGREEMENT OR $ 100.00. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE,
INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND
OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES
AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE
NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM
COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. THE FEES HEREIN
REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND
THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS
AGREEMENT.
9.2 Force Maieure. Neither party shall be under any liability for any
loss or for any failure to perform any obligation hereunder due to causes beyond its
control including without limitation industrial disputes of whatever nature, power loss,
telecommunications failure, acts of God, or any other cause beyond its reasonable
control.
ARTICLE X
TERM AND TERMINATION
10.1 Termination. The License granted herein shall remain in effect
perpetually unless terminated as provided for in Sections 10.2 or 10.3 herein.
10.2 Breach. Licensor may terminate this Agreement and the License,
without prejudice to any other remedy Licensor may have, immediately without further
obligation to City, in the event of (i) any breach by City of Articles 2, 5 or 6 of this
Agreement which cannot be remedied within ten (10) days of Licensor's notice to City of
the breach and Licensor's intent to terminate the License; (ii) any material breach of
Sections other than those set forth above which cannot be remedied within thirty (30)
days of Licensor's notice to City of the breach and Licensor's intent to terminate the
License; or (iii) City's making an assignment for the benefit of its creditors, the filing
under any voluntary bankruptcy or insolvency law, under the reorganization or
arrangement provisions of the United States Bankruptcy Code, or under the provisions
of any law of like import in connection with City, or the appointment of a trustee or
receiver for City or its property.
10.3 Remedv. City may terminate the License, without prejudice to any
other remedy City may have, in the event of any material breach of this Agreement
which is not remedied within thirty (30) days of City's notice to Licensor of the breach
and City's intent to terminate the License. Termination shall not relieve City's obligation
to pay all amounts which are due and payable or which City has agreed to pay.
10.4 Cessation of Use. Upon termination of this Agreement, City shall
cease using the Software and Documentation and promptly return all copies of the
Software, Documentation and all other Confidential Information in its possession or
control. City shall delete all copies of such materials residing in on or off-line computer
memory, and destroy all copies of such materials which also incorporate City's
Confidential Information. Licensor shall be entitled to enter the Location(s) to repossess
and remove the Software, Documentation, and any other Confidential Information. City
shall, within five (5) days from the effective date of the termination, certify in writing by an
officer or director of the party that all copies of the Software and Documentation have
been returned, deleted and destroyed.
IN
ARTICLE XI
ESCROW ARRANGEMENT
11.1 Escrow Arrangement. Following City's Acceptance of the
Software, at City's sole cost and expense, City may elect to have the source code for the
Software (the "Source Code") deposited with an escrow agent mutually acceptable to
both City and Licensor (the "Escrow Agent").
11.2 Revisions. In the event Licensor makes any material changes to
the Software during the term of this Agreement, Licensor agrees to place a copy of the
revised Source Code with the Escrow Agent.
11.3 Insolvencv. The Escrow Agent shall be directed by Licensor to
only deliver the Source Code to City, at no additional charge to City, in the event that
Licensor enters into any voluntary or involuntary receivership arrangement or other
insolvency procedures.
11.4 Ownership. City hereby agrees and acknowledges that
ownership of the Source Code at all times belongs solely to Licensor, and that any
release to City of the Source Code is only made as an accommodation to City and
nothing thereby shall be deemed to vest any ownership of the Source Code or the
Software to City.
11.5 Termination of Insolvency Proceedings. In the event that
Licensor's receivership or insolvency procedures are terminated, City, within five (5)
days of receiving notice thereof, shall return the Source Code and all copies thereof to
the Escrow Agent.
11.6 Restrictions. During any period of time in which the Source Code
is in the possession of City, it is agreed that the Source Code shall be used only by City
at the Location(s) and or the Designated Environment set forth in this Agreement and
shall not be duplicated, sold or licensed to any third parties or marketed to any third
parties in any manner whatsoever.
11.7 Indemnification. City hereby agrees to indemnify and hold
harmless the Escrow Agent against any and all loss, damages, costs and expenses that
may be incurred by the Escrow Agent by reason of the Escrow Agent's compliance in
good faith with the terms of this Article XI.
11.8 Payment of Escrow Agent. City agrees to pay all of the charges
and costs of the Escrow Agent for the Escrow Agent's services in holding the Source
Code and otherwise complying with the terms of this Article XI.
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ARTICLE XII
GENERAL
12.1 Headings. The headings used in this Agreement are for
convenience only and are not intended to be used as an aid to interpretation.
12.2 Validity. If any provision of this Agreement shall be prohibited by
or invalid under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such provision or any
remaining provisions of this Agreement.
12.3 Binding. This Agreement will be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns. City may not
assign its rights or obligations under this Agreement without the prior written consent of
Licensor.
12.4 No Waiver. Failure by either party to exercise any right or remedy
under this Agreement does not signify acceptance of the event giving rise to such right
or remedy.
12.5 Solicitation. City shall not solicit the employment of nor employ
any Licensor personnel who has been directly involved in the development, sale,
installation, or support of the Software for a period of two (2) years from the later of the
termination of such individual's employment at Licensor or the last date of Acceptance of
any Software.
12.6 Governing Law and Venue. This Agreement and the rights and
obligations of the parties hereto shall be governed by and construed under the laws of
the State of California. The parties to this Agreement agree that venue for any litigation
arising under this Agreement shall be in the County of Fresno, State of California, if
instituted in the State courts, or the Eastern District of California (Fresno), if instituted in
the Federal courts.
12.7 Counterparts. This Agreement may be executed in any number
of
counterparts, each of which shall be deemed an original and all of which shall constitute
one and the same Agreement.
12.8 Modifications. Any changes in this Agreement shall be embodied
in a written amendment to this Agreement, signed by both parties, and shall be effective
from the date specified in the amendment.
12.9 Notice. Unless otherwise agreed to by the parties, any notice
required or permitted to be given or delivered under this Agreement shall be delivered to
the address set forth in this Agreement, and addressed to the attention of:
Licensor: MostWantedSoftware, LLC
7816 N. Sanders Avenue
Clovis, CA 93619
Facsimile No.: (559) 323-9485
Attention: Mark Gerlach
City: Clerk of the City Council
City of Santa Ana
Santa Ana Police Department
20 Civic Center Plaza M-30
P.O. Box 1988
Santa Ana, CA 92701-1988
Facsimile No.: 714-647-6956
Notice shall be deemed to have been received by any party, and shall be effective, (i) on
the day given, if personally delivered or if sent by confirmed facsimile transmission,
receipt verified or (ii) on the third day after which such notice is deposited, if mailed by
certified, first class, postage prepaid, return receipt requested mail.
12.10 Attorneys' Fees. In the event of any controversy, claim, or
dispute between the parties arising out of or relating to this Agreement or the breach
thereof, the prevailing party shall be entitled to recover from the other party reasonable
expenses, attorneys' and other professionals' fees, and costs.
12.11 Survival. Articles 5, 6, 8, 9 and 11 shall survive the termination of
this Agreement for any reason.
12.12 Entire Agreement. This Agreement and its Riders and Schedules
comprise the entire agreement between the parties regarding the subject matter hereof
and supercedes and merges all prior proposals, understandings and all other
agreements, oral and written between the parties relating to the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first written above.
ATTEST:
PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By: � )..
Michael Vigliotta
Deputy City Attorney
CITY OF A TAGA��4�
DAVID N. REAM
City Manager
RECOMM NDED R APPROVAL:
Paul Walters
Chief of Police
City of Santa Ana Police Department
LICENSOR:
MostWantedSoftware, LLC, a California
limited liability company
By:
Name: Mark Gerlach
Title: CEO
Date: b //q
CONSULTANT:
Employer ID # or Individual SS#
10
SCHEDULE A
Price and Specifications
L.E.A.D. program (120 authorized users)
Price discount
Sales tax @ 7.875%
A-1
$
.00
$
- .00
Subtotal $
.00
$
.00
Total $
.00
SCHEDULE B
Designated Environment and Locations
Santa Ana Police Department
60 Civic Center Plaza
Santa Ana, CA 92701
B-1
INSURANi L U d ��L, A-2005-133B
WORK Mil" PROCUP
UNTIL INSURPWI 1 XPIRES
7-1 5 --y (.0 _.__.._..
CLERK OF COUNCii
DATF SOFTWARE MAINTENANCE AGREEMENT
c : PD
(8 Fzujev) THIS SOFTWARE MAINTENANCE AGREEMENT (this "Agreement") is made and
(f s� entered into this 16th Day of May, 2005, by and between MOSTWANTEDSOFTWARE, LLC, a
California limited liability company ("Licensor"), and the City of Santa Ana, a charter city and
municipal corporation organized and existing under the Constitution and laws of the State of
California ( hereinafter "City").
RECITALS:
A. Pursuant to the terms of the Software License Agreement dated
5/16/2005, by and between Licensor and City, Licensor has licensed to City a software product
entitled "The Law Enforcement Administrative Database (L.E.A.D.)" to be used by law
enforcement agencies for the purposes of organizing and operating various administrative
functions for law enforcement agencies from a single database (the "Software").
B. City now desires to obtain certain software maintenance services from
Licensor, and Licensor now desires to provide certain software maintenance services to City,
pursuant to the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
Licensor and City hereby agree as follows:
1. Software Covered. The software covered by this Agreement is the
Software, as more fully described in the Licensing Agreement, as the Software may from time -to
time be updated with improvements or modifications furnished to City under either the Licensing
Agreement or this Agreement. During the term of this Agreement, Licensor shall supply City with
any improvements or modifications to the Software which are not charged for by Licensee as
discretionary options to the Software.
2. Correction or Replacement. During the term of this Agreement,
Licensor shall correct or replace the Software or provide the services necessary to remedy any
programming error which is attributed to Licensor and which significantly affects City's use of
the Software. Such correction or replacement services shall be promptly accomplished after City
has identified and notified Licensor of any such error in accordance with Licensor's reporting
procedures.
3. City Support. City agrees to provide Licensor with data extracts, as
requested, and with sufficient support and test time on the City's computer system to duplicate
the problem, certify that the problem is with the Software, and certify that the problem has been
corrected. City also agrees to provide Licensor with reasonable internet access to the Software
for purposes of allowing Licensor to carry out its responsibilities under this Agreement.
4. Term. The term of this Agreement shall commence upon the effective
date of the Licensing Agreement, and shall continue for a period of one year thereafter, after
which it may be terminated by either party on thirty (30) days' prior written notice.
5. Price and Payment. City shall pay to Licensor the annual
maintenance fee designated for the Software in Schedule A attached hereto and incorporated
herein by this reference (the "Maintenance Fee"). The Maintenance Fee shall be payable
annually in advance in full without any right of set-off or deduction. Any other amounts payable
by City to Licensor under this Agreement shall be paid to Licensor within Sixty (60) days from
the date of install.
As the price of the software is waived for this install as specified in the
attached Software License Agreement, full payment of the amount specified in Schedule "A" of
this document for maintenance is due in full upon the date of install.
6. Travel Expenses. City shall reimburse Licensor for any
out-of-pocket expenses incurred at City's request, including travel to and from City's site,
lodging, meals, telephone and shipping, as may be necessary in connection with the duties
performed under this Agreement by Licensor.
7. Adjustments to Terms and Conditions. At any time after the expiration
of the initial one year term of this Agreement, Licensor may change its Maintenance Fees, time
and material charges and other terms and conditions of this Agreement upon sixty (60) days
advance written notice to City.
S. Title to Software Systems and Confidentiality. Any changes, additions,
and enhancements in the form of new or partial programs or documentation as may be provided
under this Agreement shall remain proprietary to Licensor. The Software or any improvements,
modifications or changes to the Software provided hereunder and all copies thereof are
proprietary to Licensor and title thereto remains in Licensor. All applicable rights to patents,
copyrights, trademarks, and trade secrets in the Software and the improvements, modifications
and changes thereto are and shall remain the proprietary property of Licensor. City shall not
sell, transfer, publish, disclose, display or otherwise make available the Software or
improvements, modifications or changes thereto or copies thereof to any third parties. City
agrees to secure and protect each program, software product and copies thereof in a manner
consistent with the maintenance of Licensor's rights therein and to take appropriate action by
instruction or agreement with its employees who are permitted access to each program or
software product to satisfy its obligations hereunder. All copies of the Software, or
improvements, modifications or changes thereto made by the City including translations,
compilations, partial copies with modifications and updated works are the property of Licensor.
Violation of any provisions herein shall be the basis for immediate termination of this
Agreement. Termination of this Agreement shall be in addition to and not in lieu of any equitable
remedies available to Licensor under applicable law.
9. Exclusion of Liability. LICENSOR MAKES AND CITY
RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE IS EXPRESSLY
EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR
INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED BY CITY OF THE POSSIBILITY
OF SUCH DAMAGES.
10. Termination. In the event of the termination of the Licensing Agreement,
and the end of its term or otherwise, all maintenance fees or charges payable for the term of this
2
Agreement shall become due and payable by City to Licensor and Licensor's obligations under
this Agreement shall immediately end. Licensor may terminate this Agreement in the event of
any default by City under the terms of this Agreement or the Licensing Agreement.
11. Taxes. City shall, in addition to the other amounts payable under this
Agreement, pay all sales and other taxes, national, state, or otherwise, however designated,
which are levied or imposed by reason of the transactions contemplated by this Agreement.
Without limiting the foregoing, City shall promptly pay to Licensor an amount equal to any such
items actually paid, or required to be collected or paid by Licensor.
12. Headings. The headings used in this Agreement are for convenience
only and are not intended to be used as an aid to interpretation.
13. Validity. If any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or any remaining
provisions of this Agreement.
14. Binding. This Agreement will be binding upon and inure to the benefit of
the parties hereto, their respective successors and assigns. City may not assign its rights or
obligations under this Agreement without the prior written consent of Licensor.
15. No Waiver. Failure by either party to exercise any right or remedy under
this Agreement does not signify acceptance of the event giving rise to such right or remedy.
16. Solicitation. City shall not solicit the employment of nor employ any of
Licensor's personnel who has been directly involved in the development, sale, installation,
maintenance or support of the Software for a period of two (2) years from the later of the
termination of such individual's employment with Licensor or the termination of this Agreement.
17. Governing Law and Venue. This Agreement and the rights and
obligations of the parties hereto shall be governed by and construed under the laws of the State
of California. The parties to this Agreement agree that venue for any litigation arising under this
Agreement shall be in the County of Fresno, State of California, if instituted in the State courts,
or the Eastern District of California (Fresno), if instituted in the Federal courts.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall constitute one
and the same Agreement.
19. Modifications. Any changes in this Agreement shall be embodied in a
written amendment to this Agreement, signed by both parties, and shall be effective from the
date specified in the amendment.
20. Notice. Unless otherwise agreed to by the parties, any notice required or
permitted to be given or delivered under this Agreement shall be delivered to the address set
forth in this Agreement, and addressed to the attention of:
Licensor: MostWantedSoftware, LLC
7816 N. Sanders Avenue
Clovis, CA 93619
Facsimile No.: (559) 323-9485
Attention: Mark Gerlach
City: Clerk of the City Council
City of Santa Ana
Santa Ana Police Department
20 Civic Center Plaza M-30
P.O. Box 1988
Santa Ana, CA 92701-1988
Facsimile No.: 714-647-6956
With courtesy copies to:
Executive Director of the Santa Ana Police Department
City of Santa Ana
60 Civic Center Plaza
Santa Ana, CA 92702
Facsimile No.: 714-245-8098
Notice shall be deemed to have been received by any party, and shall be effective, (i) on the
day given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified
or (ii) on the third day after which such notice is deposited, if mailed by certified, first class,
postage prepaid, return receipt requested mail.
21. Attorney's Fees. In the event of any controversy, claim, or dispute
between the parties arising out of or relating to this Agreement or the breach thereof, the
prevailing party shall be entitled to recover from the other party reasonable expenses, attorney's
and other professional's fees, and costs.
22. Survival. Sections 8, 9 and 11 shall survive the termination of this
Agreement for any reason.
23. Entire Agreement. This Agreement and its attached Schedules comprise
the entire agreement between the parties regarding the subject matter hereof and supercedes
and merges all prior proposals, understandings and all other agreements, oral and written
between the parties relating to the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of
the date first written above.
A /
PATRICIA E. HEALY
Clerk of the Council
CITY S TA A:
DAVID N. REAM
City Manager
IS
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Michael Vigliotta
Deputy City Attorney
RECOMMENDED FOR APPROVAL:
Paul Walters
Chief of Police
City of Santa Ana Police Department
LICENSOR:
MostWantedSoftware, LLC, a California
limited liabi'ty mpany
By:
Name: Mark Gerlach
Title: CEO
Date: (o A
CONSULTANT:
Employer ID # or Individual SS#
SCHEDULE"A"
Price and Payment
Annual Maintenance Fee for L.E.A.D. Program $ 12,000.00
Sales tax @ 7.875%
$ 945.00
Total $ 12,945.00
(Annual maintenance fee based on 120 authorized users. Payment is due
immediately upon installation of the software.)
A-1
AMD. CERTIFICATE OF UABIUTY INSURANCE P 0 7 -2 9= D g 5
FILN:IZ:B
DIBUDDO &DEFENDIS INS BKRS LLC/PBS
134937 P:(866)467-8730 F:(877)905-0457
P. O. BOX 33015
SAN ANTONIO TX 78265
THIS CERTIRCATE IS ISSUED AS A MATTERIN'rORMATIUN
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE C ACE AFFORDED SY THEPOLI IES SeLo J.
NSURERSAr�opoNGCOVERAGE
OXFORD
MOST WANTED SOFTWARE, LLC
7816 N. SANDERS AVE.
-CLMS CA 92619
ws,•®IA,Bartford Casualtv Ins Cc
.DEB.:
uwl�elc:
rreUlrio:
F:
COVERAGES
THE POLICIES OF INSURANCE USTED BELOW HAVE BEM ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWIT/LSTANDNLG
ANY REQUIREMENT, TEFM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE BAURANCE AFFORDEO BY THE POLICIES DESCRIBED HEREIN N SUBJECT TO ALL THE TERMS. EIUCLUMNS AND CONDITOONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAW
AM
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07/15/06
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$10 000
IX
NanoNUAAoviuuv
.14000 D00
Business Liab
aLN WIttAw
02.000.000
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51 SBA TJ3916 07/25/05
07/15/06
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Those usual to the Insured's operations. It's Officers, Agents, volunteers and
Employees, are Primary & Non-contributory and is Additional Insured per the
Business Liability coverage Form ssGOO8 attached to the policy.
k""ATON
NY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE TH
DATE THEREOF, THE ISSUING WSURER WILL ENDEAVOR TO MAIL
WRITTEN NOTICE 110 DAYS TOR NONAAYMUNI TO TIE CERTIFICA
The City of Santa Ana AMED TO THE LEFT. BUT FAILURE TO 00 SO SHALL IMPOSE NO
20 Civic Center Plaza ON OR LMILITY OE ANY KIND UPON THE INSURER. ITS AGENTS OR
TATIVES
Santa Ana, CA. 92701__
ACORD 25-S OM7)
POLICY NUMBER: 51 SBA T03916
�a
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - PERSON -ORGANIZATION
THE CITY OF SANTA ANA
20 CIVIC CENTER PLAZA
SANTA ANA, CA. 92701
IT'S OFFICERS, AGENTS,
VOLUNTEERS AND EMPLOYEES,
ARE ADDITIONAL INSUREDS
ARE PRIMARY & NON-CONTRIBUTORY
Laura Still Si-cdy
Form IH 12 00 1185 T SEQ. NO. 002 Printed in U.S.A. Page 001
Process Date: 0 a / 16 / 0 5 Expiration Date: 07 / 15 / 06
UW COPY
MCRA
&CORD. CERTIFICATE OF LIABILITY INSURANCE I °"121812oD6 '
PRODUCER (559) 432-0222 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
DiBuduo & DeFendis Insurance Brokers, LLC ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
License #OE02096 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
P.O. Box 5479 A- ROCIS — WA ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Fresno, CA 93755.5479 A -0200 J5 INSURERS AFFORDING COVERAGE i NAIC IFINsuRED Most Wanted Software, LLC INSURER A: Hartford Casualty Insurance Company 9424
7816 N. Sanders INSURER B:
Clovis, CA 93619
rnveewr_ee
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS,
INSR DD'
POUCY NUMBER
POLICY EFFECTIVE
POLICY EXPIRATION
LIMITS
A X
GENERALLIABILITY
X C0 MERCU\L GENERAL LIABILITY
51SBATJ3916
7115/2006
7/15/2007
EACH OCCURRENCE
$ 1,000,
PREMISES Ea occurence .
$ 300,00
CLAIMS MADE � OCCUR
MED EX?(Any one person)
S 10,00
PERSONAL& ADV INJURY
$ 1,000,00
GENERAL AGGREGATE
$ 2,000,00
GENL AGGREGATE LIMIT APPLIES PER:
PRODUCTS - COMPIOP AGG
$ 2,000.00
�I POLICY PRO- LOC
A
AUTOMOBILE
UAsUTY
'ANY AUTO
51SBATJ3916
7115/2006
7/15/2007
COMBINED SINGLE LIMIT
(Ee accmern)
$ $1,000,0
BODILY NJURV
(Per person)
$
ALL OWNED AUTOS
SCHEDULED AUTOS
X
X
BODILY INJURY
(Per accitlent)
S
HIRED AUTOS
NON -OWNED AUTOS
DAMAGE
(Pero arrJtlent)
S
'PROERTY
GARAGE LIABILITY
AUTO ONLY - EA ACCIDENT
S
OTHER THAN EA ACC
$
ANYAUTO
$
AUTOONLY: qZ
EXCESSIUMBRELLA LIABILITY
EACH OCCURRENCE
S
OCCUR CLAIMSMADE
AGGREGATE
$
$
DEDUCTIBLE
-
'1 /�'.5 Vo
$
RETENTION $
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY
ANY PROPRIETORIPARTNER:ECUTIVE
-,
�,
WCSTATTORY IU- OTH-
E.L. EACH ACCIDENT
$
E.L. DISEASE - EA EMPLOYEE
$
OFFICERIMEMBER EXCLUDED?
!
nyas, descrlba under
SPECIAL PROVISIONS belay
.....L ;;,)
- Ll. �11t _
7Si;+
E.L. DISEASE -POLICY LIMIT
S
OTHER
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS
'10 Day Noitce of Cancellation in the Event of Non Payment of Premium"
Certificate holder is listed as additional insured with regards to general liability per policy form IH1200 11186 attached.
rPPTICICATP Unl TIPP ceNr.Fl I ATION
SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION
The City of Santa Ana, its officers,
employees, agents, volunteers and representatives
20 Civic Center Plaza
DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO 00 50 SHALL
Santa Ana, CA 92701-
IMPOSE NO OBLIGATION OR LIABIUTY OF ANY XIND UPON THE INSURER ITS AGENTS OR
REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
L
ACORD 25 (2001108) CU ACORD CORPORATION 1983
MOSTWAN-01 MCRA
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights to the certificate
holder in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it
affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.
ACORD 25
POLICY NUMBER: 51 SBA TJ3916
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - PERSON -ORGANIZATION
THE CITY OF SANTA ANA
20 CIVIC CENTER PLAZA
SANTA ANA, CA. 92701
IT'S OFFICERS, AGENTS,
VOLUNTEERS AND EMPLOYEES, ARE PRIMARY & NON-CONTRIBUTORY
ARE ADDITIONAL INSUREDS
Form IH 1200 11 85 T SEQ. NO. 002 Printed In US.A. Page 001
Process Date: 0 5 / 04 / 0 6 Explratton Date: 07 / 15 / 0 7
UW COPY
12/07/2006 13:21 7142458190 SAPD TRAFFIC DIV rAot 01101
ADDITIONAL INSURED ENDMEMENT
FOR COMMERCIAL GENERAL JIABiLITY POLICY
Insurance Company PARtFo,e,D ,itASccFlL�bl/N5t.l1Q4N4fE' CO
This endorsement modifies such insurance as is afforded by the provisions of Policy
# S/ 5,9A relating to the following:
I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability, The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
Effective D 7 -1, -O (o To Q 7 /s- 07 this endorsement form as a part of
Policy # .5-/ ;5.dA Zt' 3C//6
Issued to />7 05f LJA- ) re.D SOS r /r R QE C CC
Named Insured
Countersigned by `� /1�-je-11149V
Authorized Representative
P5 YfY
ACORD
TM CERTIFICATE OF LIABILITY INSURANCE UCAD 05-11ATE
PRODUCER -2009
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
DIBUDUO &DEFENDIS INS BKRS LLC/PHS ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
THIS CERTIFICATE DOES134937 P: (866)467-8730 F: (877)905-0457 ALLTEDRTHE COVERAGE A FORDED BYO THE POLLII, EXTEND OR
CIESBELOW.
PO BOX 33015
SAN ANTONIO TX 78265 INSURERS AFFORDING COVERAGE
INSURED
c (- 4 INSURERA:Hartford Casualty Ins Co
�`i• INSURER B:
MOST WANTED SOFTWARE, LLC %� %��'� ����' INSURERC:
7 816 N . SANDERS AVE. INSURER D:
CLOV I S CA 93619 INSURER E:
COVERAGES
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR WITHSTANDIN
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGRFGATF I IMITC surnnrNi NAAV WAVC QC-1 0C 1 —
LTR
A
TYPE OF INSURANCE
GENERAL LIABILITY
COMMERCIAL GENERAL LIABILITY
CLAIMS MADE � OCCUR
X General Liab
POLICY NUMBER
51 SBA US 619 9
POLICY EFFECTIVE
DATE MM/DD YY
0 3/ 01 / 0 9
POLICY EXPIRATION
DATE MM/DO/YY
0 3/ 0 1/ 1 0
LIMITS
EACH OCCURRENCE
S2 , 000, 000
FIRE DAMAGE (Any one fire)
s300, 000
MED EXP (Any one person)
$1 0 , 000
PERSONAL & AD V INJURY
S2 1 0 0 0 0 0 0
GENERAL AGGREGATE
s4,000,000
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY E jEO X , L 0 C
PRODUCTS - COMP/OP AGG
A, 000, 000
AUTOMOBILE
LIABILITY
A
ANY AUTO
51 SBA US 619 9
0 3/ 01 / 0 9
0 3/ 01 / 10
SINGLE LIMIT
COM(Eaat)
S 2, 00 0,000
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
BODILY INJURY
(Per person)
S.
X
X
NON -OWNED AUTOS
BODILY INJURY
(Per accident)
$
PROPERTY DAMAGE
(Per accident)
S
GARAGE LIABILITY
ANY AUTO
APPROVED AS T
O7� ,T
FORM
i�1V1
AUTO ONLY - EA ACCIDENT
$
.✓' .=r
_
OTHER THAN EA ACC
AUTO ONLY: AGG
$
$
EXCESS LIABILITY
OCCUR CLAIMS MADE
DEDUCTIBLE
f
LaUP2 �t7 Sf/e0- y
Assistant Ciry Atto
ney
EACH OCCURRENCE
$
AGGREGATE
g
$
RETENTION $
$
$
WORKERS COMPENSATION AND WC STATU- OTH-
EMPLOYERS' LIABILITY T RY MIT R
E.L. EACH ACCIDENT $
E.L. DISEASE - EA EMPLOYEE $
OTHER E.L. DISEASE - POLICY LIMIT $
A TECH E & O 51 SBA US6199 03/01/09 03/O1/10 each glitch 2,000,000
agregate 2,000,000
DESCRIPTION OF OPERA TIONS/LOCATIONSNEH/CLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS
Those usual to the Insured's Operations. It's Officers, Agents, Volunteers and I
Employees, are Primary & Non -Contributory and is Additional Insured per the
Business Liability Coverage Form SS0008 attached to the policy.
CERTIFICATE HOLDER ADDITIONAL !NSURED; INSURER LETTER:
- -- --
CANCELLATION
The City of Santa Ana
20 CIVIC CENTER PLZ
SANTA ANA, CA 92701
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL
30 DAYS WRITTEN NOTICE (10 DAYS FOR NON-PAYMENT) TO THE CERTIFICATE
HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO
OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
REPRESENTATIVES.
A UTHORIZ+W 8_EEPRESENTA TIVE
ACORD 25-S (7/97) -- __-
ACORD CORPORATION 1988