Loading...
HomeMy WebLinkAboutIMAGEWARE 3A -1999 '-'" "'" INSURANCE NOT REQUIRED/WAIVED Santa Ana Police Department/IWS Agreement, Page I WORK MAY PROCEED CLERK OF COUNCIL DATE~ f' ,17-ff C.' 1'1/1-'" FIRST AMENDMENT-- PURCHASE AND LICENSE AGREEMENT BETWEEN IMAGEW ARE SOFTWARE INC. AND CITY OF SANTA ANA /j-/fff-t)9S . , -" WHEREAS, an Agreement (the "Agreement") for the purchase and sale of hardware and license of software was entered into on September 1993, by and between Ximage Incorporated, a California based company ("Seller") and the Santa Ana Police Department, in the State of California ("Buyer") for the purchase and sale of a computerized mug photo identification system (ForceField); and ~ WHEREAS, through the purchase of the XImage Corporation in July 1998, by ImageWare Software Incorporated and through this purchased received all rights, privileges, software and hardware designs, and contractual obligations ofthe Ximage Corporation shall be referred to as "Seller" for the remainder of this Agreement: and WHEREAS, the Buyer and Seller mutually desire to modify, upgrade, and otherwise improve the system by adding and upgrading system equipment, and adding new software and system functionality, all according to the provisions of this Agreement at additional cost to the Buyer: and WHEREAS, Buyer has determined that it is in its best interest to accept the hardware and software modifications to the system contemplated hereby to further amend the Agreement. NOW THEREFORE, the parties hereby agree to amend the Agreement as follows: 1. Purchase of System Hardware and Equipment (a) PURCHASE IWS agrees to sell to BUYER and BUYER agrees to buy from IWS, subject to the terms of this Agreement, the computer hardware and related equipment listed in the IWS Proposal, Exhibit-A of this Agreement (System Hardware). The System Hardware will be minimally configured as described in the IWS Proposal, Exhibit-A and will include operation and maintenance manuals (if any) provided by the manufacturer. 2. System Software License (a) GRANT OF LICENSE '-' ...., Santa Ana Police DepartmentllWS Agreement, Page 2 IWS grants to BUYER, subject to the terms of this Agreement, a nonexclusive and nontransferable license to use the software listed in the IWS Proposal, Exhibit-A to this Agreement (System Software). Software means computer programs in object code format only, (or, if an interpreted language, the source code itself but to be used on a runtime only basis), together with any manuals. (b) RESTRICTIONS ON USE BUYER agrees to use the System Software only for its own business and may not sell or resell any of the System Software or any rights to use the System Software. (c) MODIFICATIONS; REVERSE ENGINEERING BUYER agrees that only IWS has the right to alter, enhance or otherwise modify the System Software. BUYER agrees not to disassemble, decompile or reverse' engineer the System Software or to allow another party to do so. (d) PROPRIETARY RIGHTS BUYER acknowledges that IWS retains all title to the System Software. BUYER is neither the owner of the System Software nor any copies thereof, but is licensed (pursuant to this Agreement) to utilize the System Software for the purpose of maintaining a Booking & Suspect Identification System. 3. Installation ofthe System (a) INSTALLATION RESPONSIBILITY -- BUYER (I) BUYER is responsible, for providing access to, and preparation of, the installation site(s) as described in the Installation Procedures set forth in Exhibit-B of this Agreement. BUYER also agrees to complete these preparations at least five (5) days prior to the date installation of the System commences and confirm that all site(s) are ready for installation to IWS. (2) Any and all internal electrical work required as part of the installation (new circuits, switches, etc.) will be the responsibility of BUYER. It is BUYER's responsibility to ensure that all electrical work meets any and all applicable building and safety codes. (b) INSTALLATION RESPONSIBILITY -- IWS (I) IWS will be responsible for the delivery and installation of the System, including computer server, workstation(s), imaging equipment (camera, remote pan & tilt, etc.), printers, and miscellaneous hardware and all software. The installation will be in accordance with Exhibit- B of this Agreement. (2) Installation will commence in accordance with the Project Schedule, Exhibit-C. (3) Installation of the System Hardware is completed when the hardware is functioning in accordance with the manufacturer's specifications. Installation of the System is complete when IWS completes functional hardware and software testing and states in writing to BUYER that the System has been successfully installed. '-" ......, Santa Ana Police DepartmentlIWS Agreement, Page 3 (c) IWS EMPLOYEE BACKGROUND INFORMATION If BUYER so requires, IWS will submit biographical and fingerprint information for each person who will be engaged in performing any part of the installation. The biographical and fingerprint information will be sufficient to allow BUYER to perform security background checks on all such persons. IWS agrees to bar any person identified by BUYER as a security risk from BUYER's offices. 4. Training The training of BUYER personnel shall be the responsibility of IWS and shall include the training program presented in the Crime Capture System Training Outline, Exhibit D. BUYER shall be responsible for identifying personnel requiring training and ensuring that they are available for scheduled training. Training shall take place on dates mutually agreed upon by IWS and BUYER. The training schedule presented in the Crime Capture System Training Outline, Exhibit D, may be revised only upon written request by BUYER and acceptance of that request by IWS. All training provided directly by IWS shall be conducted on a functional training system located at BUYER's site(s). All training activities may be video taped at BUYER's expense for future in-house training. Such video tapes shaH not be sold, loaned or made available for use to other than BUYER's staff and shall be used for training of BUYER's staff only. All IWS personnel costs related to the provision of training services for BUYER training staff for the training days specified in Crime Capture System Training Outline, Exhibit D are included in the purchase price of the SYSTEM in the IWS Proposal, Exhibit A. BUYER expenses include, but are not limited to, the provision of adequate classroom space, training workstation and network equipment, the provision of sufficient copies of printed materials and for video taping of training events. IWS training shall be sufficient to allow BUYER to meet its obligations and responsibilities with respect to operation and maintenance under BUYER's obligations and responsibilities for maintenance support as defined within the Hardware and Software Maintenance Agreement, Exhibit G. IWS shall not be responsible to provide training days in excess of those specified in Crime Capture System Training Outline, Exhibit D, if BUYER's users fail to achieve competence due to absence, turnover, failure to complete adequate preparation and practice exercises, or due to demonstrably deficient native ability or qualifications. BUYER may request more training days paying the IWS training on-going rate. IWS shall develop and provide, in both electronic and printed format, procedural manuals containing all procedures, methods, documentation requirements, and techniques necessary for the successful use and operation of the SYSTEM. IWS agrees that BUYER may reproduce this material for its internal use on an unlimited basis. '-' ...., Santa Ana Police DepartmentJIWS Agreement, Page 4 5. Acceptance by BUYER (a) ACCEPTANCE TESTING After installation of the System is complete, BUYER's operational personnel have been trained, and BUYER's Representative agrees that the System is functioning reliably, BUYER will immediately commence a period of acceptance testing. (b) ACCEPTANCE BUYER agrees to accept the System after the System has functioned reliably for thirty (30) consecutive days of acceptance testing. The system acceptance testing period will be considered successful if the requirements defined in the System Acceptance Testing, Exhibit-E, are satisfied. ... Formal sign-off of acceptance ofthe system will take place immediately after the successful completion of the system acceptance period. 6. BUYER Modification of Equipment BUYER may connect equipment manufactured or supplied by other companies to the System, including peripheral equipment, computers, communications equipment, and terminal devices, provided however, that IWS will not be held responsible for any damage and/or downtime that may occur. BUYER agrees to give IWS thirty days notice to IWS of the specific equipment to be connected to the System. Within 20 days of receiving such notice, IWS will notify BUYER whether such equipment is likely to interfere with IWS's ability to perform maintenance. 7. Price and Payment Terms The total price for the System is $31,502.83 as set forth in Exhibit-A. Payment shall be according to the following schedule and be made within 30 days of receipt of IWS's invoice and notice of the listed event: Event Signing of this Agreement by BUYER Installation of System and training completed Acceptance by BUYER Percentae:e Due 33% 33% 34% 8. Warranties (a) HARDWARE IWS warrants that all major components of the System Hardware provided by IWS are new at the time of installation and will operate in conformity with its documentation provided by IWS for a period of three (3) months after installation. In the event the System Hardware ....... -' Santa Ana Police Department/IWS Agreement, Page 5 fails during this period, IWS, at its sole option, will repair, modify or replace the failed component(s) in a timely manner at no additional cost to BUYER. At BUYER's option the repaired, modified or replaced component warranty will extend for the period of down time or a new 3 month warranty periods will begin. (b) SOFTWARE IWS warrants that the Software will operate in conformity with its documentation. In the event of any non-conformity for a period of three (3) months after installation, IWS will use all commercially reasonable efforts to correct the problem by modification, enhancement or other repair so that the Software conforms to its documentation. At BUYER's option the repaired, modified or replaced component warranty will extend for the period of down time or a new 3 month warranty periods will begin. .~ (c) YEAR 2000 WARRANTY IWS warrants that the System is "Millennium Compliant". For the purpose of this warranty a "Millennium Compliant" product is such that accurately processes date data (including, but not limited to: calculating, comparing and sequencing dates), from, into and between the twentieth and twenty-first centuries, the years 1999 and 2000, and leap year calculations, when used in accordance with its product documentation, and provided that all other products used in combination with the product properly exchange data with it. (c) DISCLAIMER EXCEPT FOR THESE EXPRESSED LIMITED WARRANTIES, IWS MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH BUYER, AND IWS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. 9. Product and Customer Support IWS will provide BUYER with diagnostic software and manuals necessary to operate and maintain the System, including schematics, diagnostic and maintenance manuals as provided by the manufacturer. During the warranty period IWS will support the System without any cost to the Entity. After the warranty period, IWS agrees to offer maintenance, customer and product support for the System for at least five years after installation subject to BUYER entering into an IWS Maintenance Agreement during that five years. IWS will provide a copy of its current Maintenance Agreement to BUYER. Any such Maintenance Agreement is optional for BUYER and requires BUYER to pay an additional fee. IWS reserves the right to modify the terms and fees of its standard Maintenance Agreement at any time. 10. Limitation of Liability ........ ...., Santa Ana Police Department/IWS Agreement, Page 6 (a) MAXIMUM LIABILITY UNDER NO CIRCUMSTANCES SHALL IWS's LIABILITY TO BUYER EXCEED THE AMOUNTS PAID BY BUYER TO IWS UNDER THIS AGREEMENT. (b) LIMITATION IN NO EVENT WILL IWS HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING UNDER ANY CAUSE OF ACTION, INCLUDING CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, WHETHER OR NOT IWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.b 11. Termination; Breach (a) TERMINATION Either party may terminate this Agreement upon a breach by the other party which is not cured in a timely manner as provided for in sub-section (b) below. Otherwise, this Agreement will terminate upon both parties' fulfilling all of their obligations under it. (b) BREACH In the event of any material breach of this Agreement by either party, the aggrieved party must give written notice thereof, including a reasonably detailed statement of the nature of such breach, to the breaching party. The breaching party has thirty (30) days to cure such breach. In the case of a breach that cannot reasonably be cured within 30 days, the breaching party will provide a written estimate of the time needed to cure such breach, will commence to cure such breach within thirty (30) days of notice from the aggrieved party, and will diligently continue to cure such breach to completion. If the breaching party fails to cure, to commence cure, or diligently prosecute such cure to completion, the aggrieved party shall be entitled to suspend its performance under this Agreement for as long as the breach remains uncorrected, and avail itself the remedies provided by this Agreement. 12. Disputes; Binding Arbitration; Attorneys' Fees (a) DISPUTES In the event that any dispute or controversy arises between IWS and BUYER, IWS and BUYER agree to first attempt to resolve the matter through discussions between them directly. (b) BINDING ARBITRATION In the event IWS and BUYER are unable to resolve any matter through discussions, they agree to resolve the matter through binding arbitration. IWS and BUYER will agree upon the location and rules for the arbitration, and, if they are unable to agree, will follow the rules of ...... ..., Santa Ana Police Department/IWS Agreement, Page 7 the American Arbitration Association. (c) ATTORNEYS' FEES In the event of arbitration or any court proceedings notwithstanding subsection (b), above, the court or arbitrator may award reasonable attorneys fees and costs to the prevailing party in addition to any other relief which the party is entitled. 13. Technical and Contractual Representatives The following authorized representatives are hereby designated for this Agreement: IWS Corporation PURCHASING ENTITY Contractual: Carmen Errejon Contractual: Michael R. Lewellen Phone: (619)673-8600 Phone: (714) 245-8037 FAX: (619)673-1770 FAX: (714) 245-8098 Technical: Tracy Canepa Technical: Michael R. Lewellen Phone: (619)673-8600 Phone: (714) 245-8037 FAX: (619)673-1770 FAX: (714) 245-8098 Any notice, request, document or other communication submitted by either party to the other party under this Agreement shall be in writing or through a wire or electronic medium which produces a tangible record of the transmission, such as telegram, cable or facsimile, and will be deemed duly given or sent when delivered to the appropriate Contractual Representative listed above at the following address: Imal!eWare Software. Inc. 10883 Thornmint San Diego, CA 92127 Santa Ana Police Department 60 Civic Center Plaza! M-97 P.O. Box 1981 Santa Ana, CA 92702 14. Miscellaneous Terms (a) BUYER CONFIDENTIAL INFORMATION; PUBLICITY IWS will not publish or otherwise disclose any information or data obtained from BUYER in any manner where the identity of any particular person or establishment can be identified, except with the consent of such person or establishment. IWS will keep such information confidential using the same care and discretion used with similar information that IWS designates as confidential. Any publicity giving reference to the sale, installation, and/or operation of the System, whether in the form of press release, brochure, photographic coverage, or verbal armouncement, shall be made only with the prior approval of BUYER, provided that IWS may refer to the System '-' ....., Santa Ana Police DepartmentllWS Agreement, Page 8 during its normal course of business. (b) SOURCE CODE PROTECTION IWS agrees to deposit the source code, documentation and related materials for the System (Deposit Materials) with an Escrow Agent subject to BUYER entering into an IWS Software Escrow Agreement. The Deposit Materials will be made available to the BUYER for the purposes of self support if certain events named in the IWS Software Escrow Agreement occur. IWS will provide a copy of its current Software Escrow Agreement to BUYER in Exhibit F. Any such Software Escrow Agreement is optional for BUYER and requires BUYER to sign and accept the terms of the Software Escrow Agreement. (c) INDEPENDENT CONTRACTOR .~ IWS is an independent contractor. The manner in which the work is to be performed will be controlled by IWS; however, the nature of the work and the results to be achieved shall be specified by BUYER. IWS is not an employee or agent of BUYER and has no authority to make any binding commitments or obligations on behalf of BUYER except to the extent expressly provided herein. (d) DELA Y In the event BUYER causes delay in the installation, testing or acceptance of the System, or some part of it, whether the delay is (i) ordered by BUYER, (ii) the result of BUYER's failure to perform its installation responsibilities, (iii) caused by incompatibility with computer programs or equipment not furnished by IWS, or (iv) because of other actions by BUYER, BUYER will pay to IWS an amount based upon the Time and Materials IWS on-going rate in addition of all expenses incurred by IWS as a result of the delay. (e) CHANGE ORDERS IWS agrees to modify the System or installation procedures, if requested to do so by BUYER, and such modifications will not affect the validity of this Agreement. If the modifications result in an increase in the amount of the work required by IWS or in the cost of System Hardware or Software, the parties agree that an appropriate price adjustment will be made. All modifications will be in writing signed by IWS and BUYER's Representative and will describe the change and the cost, if any, of the modification. (t) RISK OF LOSS OR DAMAGE IWS will bear all risk of loss or damage to System Hardware and Software until delivered to BUYER's location. After the System Hardware and Software are delivered, BUYER bears all risk ofloss or damage, except loss or damage attributable to IWS's negligence, defects that BUYER could not reasonably have discovered prior to Acceptance, or IWS's breach of this """ 'wi Santa Ana Police Department/lWS Agreement, Page 9 Agreement. (g) FORCE MAJEURE Any delays in or failure of performance by IWS or BUYER, except for the obligation to make payments, will not constitute default under this Agreement to the extent the delays or failure of performance is caused by occurrences beyond the control of IWS or BUYER, including, but not limited to, acts of God or public enemy, expropriation or confiscation of facilities, compliance with any order or request of any governmental authority, act of war, rebellion or sabotage, fires, floods, explosions, earthquakes, accidents, or riots. (h) TAXES .~ BUYER shall be responsible for payment of any sales, use, withholding or other similar taxes (other than taxes based on IWS's net income) which may be imposed on the payments due under this Agreement and shall promptly reimburse IWS for any such taxes (including interest, penalties and additions to tax with respect thereto), whether such taxes are included with the purchase price shown on Exhibit-A or imposed in the future. BUYER warrants that it is a tax exempt organization and that IWS is therefore not responsible for payment of any personal property taxes for property in the possession of BUYER on the date of assessment. (i) INDEMNITY (1) Obligations -- BUYER: BUYER agrees to protect and hold IWS harmless from any and all claims, suits, actions and procedures brought or filed by third parties and from all damages, penalties, losses, costs and expenses (including attorney's fees) arising out of, or related to, any act or omission of BUYER, its employees, or agents. (2) Obligations n IWS IWS agrees to protect and hold BUYER harmless from any and all claims, suits, actions and procedures brought or filed by third parties and from all damages, penalties, losses, costs and expenses (including attorney's fees) arising out of, or related to, any act or omission ofIWS, its employees, or agents. In addition IWS agrees to protect and hold BUYER harmless from any claims brought against BUYER alleging that the System Software infringes a 3rd party's patents or copyright, provided that IWS is notified promptly by BUYER of any such claim (including any threatened claim) and IWS has sole control of the defense with respect to such claims. The preceding indemnification by IWS will not apply to any claim based, in whole or in part, on any modification of the Software made by any person other than IWS. If a final injunction is issued, or, IWS believes, is likely to be entered, prohibiting the use of the Software by BUYER, IWS will, at its sole discretion and expense, either: (i) procure for BUYER the right to use the Software as provided herein, (ii) replace the Software with non-infringing, '-' 'wII Santa Ana Police DepartmenllIWS Agreement, Page 10 functionally equivalent product; (iii) suitably modify the Software so that it is not infringing and provides similar functionality; or (iv) accept return of the Software and refund the purchase price. IWS'S LIABILITY FOR ANY INFRINGING SOFTWARE IS STRICTLY LIMITED TO THE FOREGOING. G) INSURANCE; WORKERS' COMPENSATION COVERAGE IWS will maintain and require all of its subcontractors, consultants and other agents to maintain, insurance as follows: (i) Workers' Compensation insurance with statutory limits as required by the Labor Code of the State of California, and (ii) Commercial general liability insurance covering bodily injury and property damage using an occurrence policy form in an amount of not less than one million dollars ($1,000,000) combined single limit for each ~ occurrence. (k) INCORPORATED EXHIBITS All Exhibits to this Agreement constitute integral parts of, and are incorporated into, this Agreement. (I) WAIVER The waiver or failure of either party to exercise in any respect any right provided for in this Agreement will not be deemed a waiver of any further right under this Agreement. (m) NON-DISCRIMINATION IWS will comply with all applicable federal, state and local laws, rules and regulations in regard to non-discrimination in employment because of race, color, ancestry, national origin, religion, sex, marital status, age, medical condition, disability or other prohibited basis. (n) ASSIGNMENT BUYER may not transfer, assign or otherwise dispose of its rights or obligations under this Agreement, including but not limited to the Software license, without IWS's written permission. However, IWS will not unreasonably withhold a request by BUYER to assign its rights or obligations to another party of equal fiscal soundness and business reputation, and BUYER may, upon a sale of all its assets, transfer its rights and obligations under this Agreement to the successor agency. This Agreement shall be binding upon and inure to the benefit of the successors, permitted assigns and heirs of the parties. (0) LAW GOVERNING AGREEMENT This Agreement will be governed by and construed in accordance with the laws of the State of CALIFORNIA without reference to conflict of law principals. (P) SURVIVAL OF PROVISIONS Notwithstanding any termination of this Agreement, the following provisions survive and remain in effect: Sections 10, II, 12, 13, 14 and 15. ""'"'" ..." Santa Ana Police DepartmentlIWS Agreement, Page I J (q) ENTIRE AGREEMENT: MODIFICATIONS: INVALIDITY This Agreement, including the exhibits, constitutes the entire agreement between the parties and supersedes all previous agreements or representation, oral or written, relating to this Agreement. This Agreement may only be modified or amended by a writing signed by each party. Both parties acknowledge they have read this Agreement, understand its terms and conditions, and agree to be bound by it. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. 15. Signatures Agreed to: Citv of Santa Ana. a charter citv and municipal corporation of the State of California -" Agreed to: ?',) '7 - f'f By: Ima eWare Software Inc By: ~7~ !J~;N6 lUal-l,c;/2~II. . &PD ~ /11./77 Name:' Name: Title: Mavor Title: Date: Date: ATTEST: By 51-.. h" %-.7 . ? Name: Janice C. Guv Title: Clerk of the County Date: APPROVED AS TO CONTENT: ...... Santa Ana Pnlice Department/IWS Agreement, Page 12 By: ~~ Name: David N. Ream Title: Citv Manager Date: RECOMMENDED FOR APPROVAL By: ~/9Ve"(.<t,- t~e: Paul M. Walters Title: Chief of Police Date: 'g.,z '3.?'l APPROVED AS TO FORM: By: Name: Hu h Halford Title: Assistant City Attorney Date: """" j; . BUVERlIWS Agreement, Pag.....,] '>J EXHIBIT A - IMAGEW ARE PROPOSAL PURCHASING ENTITY DESCRIPTION QTY UNIT EXT TOTAL DISCOUNT Discounted % Price NetfiniiV30002661300 13501400MHz 1 IBM Netfinity 3000 Pentium 11400MHz/512KB L2,64MB 1 $1,950.00 $1,950.00 ECC,OPEN,32X,PCIIISA IStdl 1 011 00 PCI Ethernet (Std) 40011 00 MHz Pentium II Processor with 512KB ECC L2 Cache 'Std 5.25 to 3.5 DASD Bav Conversion Kit IStCi\ 64MB 100MHz ECC SDRAM DIMM Std) CD-ROM Drive Internal 32X Max Nariable Sneed' Std IBM 1044MB 3.5-inch Diskette Drive Std IBM 104-kev Ke"board 'Stealth Grev) Std Intenrated IDE Controller Std Mouse Stealth Grev Std SCSI WideI16bii\4-Dronlnternal Cable 68 Pin Connectors Std SVGA Gra;;tiics Card IAGPY Std PCI FastlWide Unra SCSI Adanter 64MB 1 OOMHz ECC SDRAM Non-Renistered' DIMM 1 $182040 $182.40 IBM 12/24GB DDSI3 4-mm Internal Tane Drive Black Bezel' 1 $1,198.80 $1,198.80 IBM 9.1 GB 7200RPM Wide Ultra SCSI Hard Drive 3 $71880 $2 156040 IBM NetfiniiVServerRAID-3L Ultra2 SCSI Adanter 1 $840.00 $840.00 G74 - 17115.9Yin. Color Monitor, 69 KHz Pearl White 1 $423.60 $423.60 SUBTOTAL $6,751.20 CAPTURE STATION HARDWARE IBM PC 300PL 6862'14x4\ 2 PC 300PL Pentium II 400MHz 2 $1,758.00 $3,616.00 $3,516.00 MMXl512KB,64MB,6AGB,4MB,32X, 16bit Audio,Win98,PCIIISA IStdllBM 604GB EIDE Hard Drive IStdil0/100 PCI EthemetWOL {Std' 16-bit ISA Cn'stal Audio Intearated (Std) 400/100MHz MMX Pentium II Processor with 512KB Pine line B {Std' 4MB Intenrated SGRAM Videa Memorv Std' 64MB 60ns NP SDRAM DIMM Stdl CD-ROM Drive Internal 32X Max lVariable Sneed' Std IBM 1044MB 3.5-inch Diskette Drive Std IBM 1 04-kevRubber Dame Kevboard Std Inte"rated IDE Controller Std S3 Tri03D AGP Granhics Intenrated G74 -17115.9\in. Color Monitor, 69 KHz, Stealth Grav 2 $445.20 $890040 $890040 SUBTOTAL $4,406.40 CAMERA SUB-SYSTEMS Hitachi HV-C20 Camera, NIST standards 13 chin' 2 $4,342.80 $8,685.60 100% SOOO Cosmicar/Pentax H15ZME Zoom Lens 2 $1,341.60 $2,683.20 100% $0.00 :lOoint unht;n;;s;;stem 2 $1,194.00 $2,388.00 100% $0.00 Pan and Tilt Camera mount 2 $1,440.00 $2,880.00 $2,880.00 Reflective Pedestal 2 $822.00 $1,644.00 100% $0.00 Cable bundle 2 $180.00 $360.00 100% $0.00 Power Sunnlv fThree Chin\ 2 $180.00 $360.00 100% $0.00 NIST co~iance ca;:;ture software 2 $1,500.00 $3,000.00 100% $0.00 Canture Card MVPro 2 $804.00 $1,608.00 100% $0.00 SUBTOTAL $23,608.80 INVESTIGATIVE STATION HARDWARE IBM PC 300PL 686i14x4\2 PC 300PL Pentium II 400MHz 1 $1,758.00 $1,758.00 $1,758.00 MMXl512KB,64MB,6AGB,4MB,32X, 16bit Audio,Win98,PCI/ISA BUYERJIWS Agreement, pag""'2 ...., (SldIIBM 6.4GB EIDE Hard Drive (Sldl1 01100 PCI Elhernet WOL . ISldl16-blt ISA Cryslai Audio InleQrated (SId) 4001100MHz MMX Pentium Ii Processor with 512KB Pipeline B SId 4MB InleQrated SGRAM Video Memory Std 64MB 60ns NP SDRAM DIMM Sid CD-ROM Drive Internal 32X Max Variable 8oeed) Std IBM 1.44MB 3.5-inch Diskette Drive (Sid) IBM 104-key Rubber Dome Kevboard (Sid) InteQrated IDE Controller (Sid) S3 Trio3D AGP Graphics InleQrated G74 -17115.9 in. Color Monitor, 69 KHz, Stealth Gray 1 $445.20 $445.20 $445.20 SUBTOTAL $2,203.20 SOFTWARE CCS InvestiQative Display Software (Full) 1 $6,750.00 $6 750.00 50% $3,375.00 ecs Capture Station software 2 $10,000.0 $20,000.0 50% $10,000.00 0 0 I nvestigative/M ugbook 26 $500.00 $13,000.0 100% $0.00 0 SUBTOTAL $39,7if).00 PRINTERS Mitsubishi CP 700 1 $3,900.00 $3,900.00 $3,900.00 SUBTOTAL $3,900.00 SUBTOTAL HARDWARE AND SOFTWARE $80,619.60 $26,764.60 SERVICES and LICENSES Conversion of Records from ForceField 80,000 $0.20 $16,000.0 o $687.23 $687.23 $675.70 $675.70 100% $0.00 $687.23 $675.70 5-User Windows NT Server License # 606670 Microsoft SOL 5 User SUBTOTAL $17,362.93 . . . -. . - . -,. . ., . I' $28,127.53 SUBTOTAL AFTER DISCOUNT Shi in IHandlin flnstallationfTrainin . ... Maintenance Year 1 $14,511.53 . BUYERJIWS Agreement, Pag"",,I ""'" EXHIBIT B- INSTALLATION PROCEDURES 1. Installation Location The System is to be installed at the following addressees): loO 611 tL (lpt'\\-e(" lad. C.Vl(. Cen-\u" PI/A.w.- PIau;.. ~ ATto.- .<W\ tr... AnI.>- 2. BUYER's Responsibilities " IWS will provide BUYER with a copy of the CCS System Preparation and Installation Guide. BUYER is responsible for reviewing the Guide and providing the following in conformance with the Guide: (a) Site Preparation -- Server (1) Suitable space including tables, chairs, stands, or racks. (2) Two telephone lines (one voice line and one modem line) and one voice handset. (3) Clean temperature controlled environment. (4) Any requisite electrical and/or lighting work. (5) Tested and operational network connection. (b) Site Preparation -- Workstations (1) Suitable space including tables, chairs, stands, or racks. (2) One telephone line and one voice handset. (3) A suitable background (plywood, plaster board, etc) secured to the wall for any capture stations. (4) Reasonably clean environment. (5) Any requisite electrical and/or lighting work. (6) Tested and operational network connection. (c) Other (1) Suitable nearby parking for IWS installation personnel. BUYER will pay any and all parking costs associated with installation work performed by IWS personnel at BUYER's facility. (2) BUYER will make certain that authorized IWS personnel have access to BUYER's facility(ies) 24 hours/day -- 7 days/week while the System is being installed and tested. BUYERlIWS Agreement, Pag\,..f2 'wtI (3) Labor and equipment necessary to transport the System Hardware from BUYER's receiving area at the receiving location to the installation site. (4) A clean operating environment at the installation site which complies with temperature, humidity and operational specifications of the System Hardware. 4. IWS's Installation Responsibilities IWS is responsible for providing the following relating to the System installation: (I) Supervision of BUYER employees who transport the System Hardware from the receiving area to the installation site. (2) Installation of the System Hardware at the designated ... sites. (3) Operational checkout of the Equipment, including off- line verification. (4) Installation of the System Software at the designated sites. (5) Operational verification of each computer and item of equipment on a stand-alone basis and as interfaced with equipment furnished by BUYER, including transmission lines, modems and computers. BUYERlIWS Agreement, Pag"'-"l EXHIBIT C - PROJECT SCHEDULE ..., " BUVERlIWS Agreement, Pa~ 1 ""'" EXIHIBIT D - CRIME CAPTURE SYSTEM TRAINING OUTLINE Crime Capture System Training IWS will provide one day of training for the system administrator and for the system users (Maximum of 15 trainees per session). Crime Capture SystemrM Training Outline Operator Training Objective: By the end of the training session, students will know how to book a suspect, search a database, use the mug book function and create photo line-ups. .~ Training Outline: I. Starting the program 5 minutes III. New Bookings a. Adding a New Booking 1. Taking a picture 2. Quality control 3. c. Viewing Records d. Viewing Multiple Bookings e. Editing and Deleting Records f. Printing Individual Records 120 minutes IV. Searching a. Quick Search b. c. Saving a Search d. Running and Existing Search e. Deleting and Existing Search f. Printing Search Results 45 minutes V. Mug Book a. Searching for Mugshot b. Saving a Mug Book c. Viewing an Existing Mug Book d. Deleting a Mug Book 30 minutes VI. Photo Line-up a. Creating a Photo Line-up 40 minutes 'BUYERlIWS Agreement, Pag~2 ...." b. Saving a Photo Line-up c. Viewing an Existing Photo Line-up d. Deleting an Existing Photo Line-up e. Printing a Photo Line-up System Administrator Training I. Setting up passwords II. Defining operator rights III. Backing up the system IV. Archiving Information V. Setting Mandatory Fields VI. Customizing Data Pick Lists ,~ 'BUYERlIWS Agreement, Pag~ ..., EXHIBIT E - SYSTEM ACCEPTANCE TESTING E,l SYSTEM ACCEPTANCE TESTING (SAT) The SAT will take place after the installation of all hardware and software and IWS has certified the System installation completed and ready for testing. BUYER will conduct the SAT. The SAT team will utilize all capture and display stations to capture live images and to make sufficient inquires of the system to measure its conformance and compatibility with the following: E.l.l Each capture station must, capture, display images and print images in black and white or color according to the type of printer available. E.1.2 Each investigative station must be able to display a minimum of 25 color full-face images at one time, display and print images in color and black and white. .~ E.1.3 Each investigative station must be able to access the database using name or booking number, and display the proper image and data. E.l.4 Each investigative station must be able to search the database using predetermined searchable fields.. E.!.5 Each investigative station must be able to generate and display photo line-ups. The line-ups must be able to be stored for later retrieval. The line-ups must be able to be recalled by suspect name, or line-up identification number. The identification number must appear on every copy of the line-up that is generated and printed. E.!.? The System's training mode must be accessible from any capture or investigative station and must not effect on-line data nor interfere with other stations on the system. E.l.8 Standalone testing. The system must be tested to ensure booking images can be captured when the ImageWare server(s) are down. E.1.9 The System must be able to seal, expunge, or delete any recorded image and associated data. E.l.10 Each investigative station must be able to print flyers and wanted posters. BUYERlIWS Agreement, Pag~ "will EXHIBIT F - SOFTWARE ESCROW AGREEMENT .{; "-' 'wtI BUYERlIWS Agreement, Page 0-1 EXHIBIT G - SOFTWARE AND HARDWARE MAINTENANCE AGREEMENT G.1 TERM. G.1.1 Initial Term. The initial term of this Agreement shall commence on the date of Acceptance and shall extend for a five (5) year period. G.1.2 Renewal Terms. This Agreement shall be renewed thereafter, automatically for successive one-year terms, unless BUYER gives IWS ninety (90) days prior written notice of its intention not to renew this Agreement. 0.2 MAINTENANCE SERVICE TO BE PROVIDED. " 0.2.1 General. During the initial term of this Agreement, and any renewal term thereof, IWS shall provide to BUYER maintenance service with respect to the System consisting of (I) Preventive Maintenance as described in paragraph 0.2.2, (ii) Remedial Maintenance as described in paragraph 0.2.3, and (iii) Extra Services as described in paragraph 0.2.4, all in accordance with and subject to the terms and conditions of this Agreement. 0.2.2 Preventive Maintenance. Preventive Maintenance shall consist of all maintenance service, other than Excluded Services as defined in paragraph 0.2.5, performed by IWS in accordance with a predetermined schedule and independently of any System Failure, for the purpose of maintaining the System in good working order. Preventive Maintenance, which shall require quarterly, semi annual, and annual maintenance work and shall be performed by IWS personnel on normal working days between the hours of 8:00 a.m. and 4:30 p.m. or as otherwise arranged. Pursuant to the provisions of the IWS's maintenance manual and in accordance with a schedule mutually acceptable to BUYER and IWS, consistent with BUYER's operating requirements and the specific needs of the System as determined by IWS from time to time. For the purpose of this agreement, Normal Business Hours shall be from 8:00 a.m. to 4:30 p.m. on working days, i.e. Monday - Friday except holidays. 0.2.2.a. Quarterly Maintenance shall include, but not limited to, IWS's personnel performing a quality control check of the system to assure BUYER that the system is performing at the prescribe standards for System functionality. 0.2.2.b. Semi Annual Maintenance shall include the Quarterly Maintenance III addition, but not limited to, a general cleaning of the system. "-' 'wtI BUYERlIWS Agreement, Page 0-2 0.2.2.c. Annual Maintenance shall include a thorough inspection, cleaning, hardware alignment, and general system check to preserve image and system performance quality. 0.2.3 Remedial Maintenance. Remedial Maintenance shall mean all maintenance, other than Excluded Services, reasonably required as a result of, and for the purpose of correcting, a System Failure. For purposes of this Agreement, System Failure shall mean any malfunction in the System that prevents or materially interferes with, the accomplishments of any or all of the System intended functions. Following any identification of any System Failure by BUYER, and BUYER's completion of the diagnostic checklist and procedures recommended by IWS in the User Documentation Set, BUYER shall provide notification thereof to IWS. . In the event of any software failure, IWS shall thereafter make a good faith effort to cause the appropriate software support person to respond to the BUYER within 30 minutes of the notification with an update as to cause and/or possible solutions. Software support shall be available 24 hours per day 7 days each week including holidays regardless of the severity of the software failure. In the event of any hardware failure, IWS shall thereafter make a good faith effort to cause an authorized representative of IWS to arrive at the location where the System is installed no later than twenty-four (24) hours following IWS's receipt of such notification. IWS shall from time to time advise BUYER of the name(s) and location(s) of locally-based IWS personnel authorized to receive such notifications and IWS shall ensure that such personnel are available to BUYER at all times that the System is scheduled by BUYER to be in operation. Hardware support shall be available 7 days per week 24 hours per day for critical items as defined in paragraph G.2.3.1, and during normal work days and hours for non critical items as defined in paragraph G.2.3.2. 0.2.3.1 Critical items: All IWS hardware associated with the Server, IWS supplied interfaces, and Capture Stations that prohibit the BUYER from performing their day to day duties associated with the capture and storage of mug photo images shall be considered as Critical Items. The only hardware exception to this paragraph will be the printers. 0.2.3.2 Non Critical Items: All IWS supplied hardware items not mentioned in paragraph 0.2.3.1 will be considered non critical items and shall be repaired during the IWS's normal work hours. This will include the printers associated with any capture station and display stations. "-' ...." BUYERlIWS Agreement, Page G-3 0.2.4. Extra Services. Extra Services shall consist of any maintenance services with respect to the System, other than Preventive Maintenance and Remedial Maintenance, including without limitation, Excluded Services. IWS shall be under no firm obligation to perform any Extra Service but undertakes to make a good faith effort to render such services to the extent that it is capable of doing so without substantially interfering with its other obligations under this Agreement or its obligations to other customers. If so requested by BUYER, IWS shall provide a written estimate of extra charges likely to be incurred or accrued as a result of the performance of such services, to the extent such services can be reasonably ascertained in advance. 0.2.5. Excluded Services. For the purpose of this Agreement, Excluded Services shall be defined as; Any maintenance services necessary or appropriate in order to correct any System Failure, or potential failure, attributable in whole or in part to any of the following factors or any combination thereof. 0.2.5.1 Failure by BUYER to provide or maintain a suitable installation environment as the System Site in accordance with the operations documentation, and any other reasonable requirements thereafter communicated in writing by IWS to BUYER, including without limitation, any electrical power, air conditioning, or humidity control failure or changes to the environment of the System Site. 0.2.5.2Use of supplies or materials not approved by IWS, or by the equipment manufacture. 0.2.5.3Use or attempted use of the System for any purpose other than that for which it was acquired. 0.2.5.4.Alterations to the System (other than alterations installed by IWS or authorized in writing by IWS). 0.2.5.5.Connection of the System by mechanical or electrical means to any other machine, equipment or device (other than those installed by IWS or authorized in writing by IWS) other than normal network connections 0.2.5.6. Removal, transportation or relocation of the System by any person other than IWS, unless authorized by IWS in writing. 0.2.5.7. Neglect or misuse of the System by BUYER or any third party, except persons for which IWS is responsible under this Agreement. 0.2.5.8Any other intentional or negligent damage to the System by the BUYER or third party except for prospective customers ofIWS for which IWS is responsible. ...... ....., BUYERlIWS Agreement, Page G-4 G.2.5.9Any other failure by BUYER to comply with its obligations under this agreement or the Purchase and License Agreement. G.2.5.1O Any event of force majeure, or any other cause other than ordinary use, unless otherwise authorized in writing by IWS. G.2.5.11 Any maintenance services to be performed on any software, hardware or other item not furnished by IWS to BUYER or any other work external to the System by anyone other than IWS. G.2.6 Replacement or Repair. In performing Preventive Maintenance and Remedial Maintenance, IWS shall be entitled to exercise reasonable discretion in determining whether to replace or repair any malfunctioning item, provided, however, that any such replacement shall be of equal or better quality and, in the event of a malfunction of key circuit boards, to be specified by IWS, a replacement board will be provided pending completion of repairs on the defective board. G.2.7 Diagnostic Software. In order to facilitate rapid analysis of System Failure involving software, IWS will provide a trained staff, at their company location, capable of handling all software failures in an expedient manner. In addition they will have diagnostic software for the purpose of identifYing the cause of any System Failure, temporarily patching around the problem if necessary or temporarily disabling the use of that software module so that the System can be returned to use for all other activities with only a minor degradation in operation. G.2.8 Off-Site Maintenance: Any maintenance services required to be performed under this Agreement which cannot, in IWS's reasonable judgment, be performed effectively at or near the System Site shall be performed at such other location(s) as IWS may determine, at no extra cost to Customer. However, a loaned partes) from IWS's warehouse must be installed prior to the shipping of the item(s) being removed for maintenance. G.2.9 Log Entries: BUYER shall receive monthly or have access to all log entries with regards to system failures, and any other malfunctions, problems, or defects in the System, in accordance with a format to be provided by IWS. Upon completion of each Preventive Maintenance task, Remedial Maintenance task, or Extra Service, IWS shall provide a written report to the BUYER of the problem, resolve, and any equipment replaced. This shall be kept in a binder on site at each capture station and display station location. G.2.IO Notification: IWS shall notifY BUYER of all routine, scheduled, unscheduled, and non-routine maintenance completed to the system. This notification shall include the BUYER's reference number (if maintenance was a result of a problem v "wi. BUYERlIWS Agreement, Page G-5 call), IWS's reference number, point of contact for the maintenance and a description of the maintenance or correction. Notification will be provided to the person reporting the problem and/or BUYER's maintenance contact. G.3 Annual LicenselMaintenance Fee: The initial Annual License/Maintenance Fee is $14,511.53, payable 90 days after Final Acceptance. The next Annual LicenselMaintenance Fee is 14,511.53, payable one year from said date. Thereafter, Annual License/Maintenance Fees will be due and payable on each anniversary of said date. Annual LicenselMaintenance Fees may be increased by Contractor 4% yearly after the second year. .~ .. . ~.. Barney & Barney, LLC-CA Barney & Barney, Inc-CA P.O. Box 85638 San Diego, CA 92186-5638 (858) 457-3414 Mst#: 3646 CERTIFICATE OF INSURANCE ISSUE DATE (MMIOOIYV) PRA26090 No 99513[;02/26/03 . THIS CERTIFICATE IS ISSUED AS A MAnER OF INFORMATION ONLY AND L1.cOC03950 CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE LicOC24310 ~m:NOT AM~D. EXTEND OR ALTER THE COVERAGE AFFORDED BY THE INSURED IMAGEWARE SYSTEMS I INC. I AL, SEE ATTACHED) 10883 THORNMINT ROAD SAN DIEGO CA 92127 : GENERAL LIABILITY .......-- ~..X_~<?~~MERClAl GENE~: ~\ABILlTY A:...___J..__ : CLAIMS MAOEi..X.J OCCUR. r------i OWNER'S & CONTRACTOR'S PROT. ~.._.-j_. ...------ : AUTOMoelLE L1ABU.1TY ; , .f ANYAUTO :" --"j ALL O'vYNEO AUTOS f-.----: : i SCHEDULED AUTOS !----'I A!-X~ HIRED AUTOS ~.>.U NON-QWNED AUTOS : ! GARAGE LIABILITY 1....m.'l i EXCESS UABIUTY ,'-"-"-\ ALJLl UMBRELLA FORM ! OTHER THAN UMBRELlA FORM si , ! WORKER'S COMPENSAnON ANO EMPLOYERS' LIABILITY ! OTHER PROFESSIONAL C! LIABILITY-ERRORS I & OMMISIONS 761-00-67-79 761-00-67-79 761-00-67-79 1689229-02 02S0L0211 DesCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I SPECIAL fTEMS ! f~~~~NY A COMPANIES AFFORDING COVERAGE ATLANTIC-ATLANTIC MUTUAL INSURANCE CO. STATE COMPENSATION INSURANCE.FUND (ET ~~NY B CARPENTER MOORE - LLOYDS OF LONDON fme7'Y c NO COVERAGE ON THIS DOCUMENT ! COMPANY D : LETTER NO COVERAGE ON THIS DOCUMENT COMPANY E jLCTTER ; 07/10/.02; \ COMBINED SfNGlE I.UMIT ; BODILY INJURY i (Per .person' .07 /10/0311 ~~L~':~;'" IPeraccident) ! j PROPERTY DAMAGE COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCC. BELOW HAVE 8EEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDJTION OF AIoJY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERfAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIes. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. P,---".P.... .__.._u _.....~ ..--- -'-~-~---_. r-'--'_h"_~__'_____~'~n__.._..._.... . -'_'_' r"- -....-_....___.,.__ '-'r--""''''-~'-'--''-_'_' T'~"'-"'-""'-""'-'---'--- CO: TYPE OF INSURANCE i POLICY NUMBE"l ! POUCY EFFECTfVE i POLICY EXPIRATION: i ! DATE jMMIODM'",l; DATE jMMlDDIYY) 1 lDENERALAGGREQAT(; j $..*2., .0 00 ,00.0 ! PRODUCTS-COMPIOl' ADO. +$.*2,..0 00., .0.0.0 .07/10/021 07/1 .0/ 03!PE.RSON;:;'$ADv.INJ~":;-' +~EXCLUDED m i EACH OCCURRENCE i $ *1 ,0.0 0, 0.0.0 jF;~~.~'~:~.~'~~..r;reL_. j.~.~ 1/0.Q.0.,.0.0.0 ; MED. EXPENSE (Anyone person)' S * * * * ; 07/10/02! i EACH OCCURRENCE 07 /10/03!"",~~__ ; 1 07/14/.o2i i .. STATUTORY UMITS 07/14/03!EACHAC'''D5.NT , 1 DISEASE _ POlICY UMrT ,_ n.._.~___.. __ __....~u.. , i 07/10/02! ! DISEASE - EACH EMPLOVEE UMITS , 1$*1,000.00.0 .r,~.'*,,~ ,*,.'~:__ir.~:*__~.O 1$*********0 r....m....... .....w..__.. . I is********* 1$*2,000,000 H--_f!*2,.oQ.o,000 :$*1,000,000 1$*l,QQO,O.OO ;s* I $1,000,000 LIMIT 07/10/03: APE RE: INSTALLATION AND MAINTENANCE OF "CRIMES" HARDWARE CERTIFICATE HOLDER CITY OF SANTA ANA, ITS OFFICERS, EMPLOYEES, AGENTS AND VOLUNTEERS 20 CIVIC CENTER PLAZA SANTA ANA CA 92701 ACOAD25-8 CANCEUATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCElLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILLXX!ltll2JQllfli!!l{Jrn: MAIL ~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 1!IK2€l!!~ocmox~~~lUQJ{~J11K ~D{~~lQR1X~~J'MX1JJllli~~ - ~ITCH CACORD CORPORATION 191(1 THE CERTIFICATE HOLDER IS NAMED AS ADDITIONAL INSURED PER THE ATTACHED ENDORSEMENT. . ..' .... ....,; Imageware Systems, Inc. Named Insured Imageware Systems, Inc. Imageware Software, Inc. (Inactive) Imaging Technology Corporation Xlmage Imageware Systems ID Group, Inc. Castleworks, LLC E-Focus West, LLC Imageware Digital Photography Systems, LLC IW Systems Canada Company G&A Imaging, Inc. (shell company only) Digital Imaging International GMBA (Germany) Digital Imaging Asia Pacific PTE Ltd. (Singapore) : '-' ...,; THIS ENDORS~.v'IENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSUREDS BY CONTRACT, AGREEMENT OR PERMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM The WHO IS AN INSURED section is amended to include as an insured any person or organization with whom you agreed in a written contract, written agreement or permit to provide insurance such as is afforded under this Coverage Part, but only with respect to your operations, "your work" or facilities owned or used by you. This provision does not apply: 1. Unless the written contract, agreement or permit has an effective date and has been issued prior to the "bodily injury", "property damage', "personal and advertising injury" or "personal injury" or "advertising injury" (whichever definitions are used in your policy); 2. To any person or organization included as an insured under the Additional Insured - Broad Form Vendors provision of this endorsement; 3. To any person or organization included as an insured by an endorsement issued by us end made -part of this Coverage Part; 4. To any lessor of equipment; a. Alter the equipment lease expires; or b. If the "bodily injury", "property damage', "personal and advertising injury' or "personal injury" or "advertising injury" (whichever definitions are used in your policy), arises out of the sole negligence of the lessor; 5. To any person or organization if the "bodily injury", 'property damage", 'personal and advertising injury" or 'personal injury" or "advertising injury" (whichever definitions are used in your policy), arises out of the rendering of or failure to render professional services by or for you; 6. To any: 8. Owners or other interests from whom land has been leased; or b. Managers or lessors of premises If: (1) The 'occurrence" takas place alter you cease to be a tanant in that premises; or (2) The 'bodily injury", 'property damage', "personal and advertising injury' or "personal injury" or "advertising injury" (whichever definitions are used in your policy), arisas out of structural alterations, new construction or demolition operations performed by or on behalf of the owners or other interests from whom land has been leased. AP TINE l.EE SHAW Deputy City Attorney VCG 21110 98 Includes copyrighted material 01 Insurance Services Office, Inc. @, Atlantic Mutual Insurance Company, 1998 PRODUCER Page 1 of 1 . . . . -- . "'wI The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any re- maining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the add~ tional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance. SECTION IV - COMMERCIAL GENERAL LIABIUTY CONDITIONS 1. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any lnjurl or damage arising out of the "occurrence" or offense. b. If a claim is made or "suit" is brought against any insured, you must: (1) Immediately record the specifics of the claim or "suit" and the date received; and (2) Notify us as soon as practicable. You must see to it that we receive written notice of the claim or "suit" as soon as practicable. c. You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers received in con- nection with the claim or "suit"; (2) Authorize us to obtain records and othar information; (3) Cooperate with us in the investigation or settlement of the claim or defense against the "suit"; and (4) Assist us, upon our raquest, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this Insurance may also apply. d. No insured will, except at that insured's own cost, w1untarily make a payment, assume any obligation, or incur any expense, other than for first aid, witihout our consent. 3. Legal Action Against Us No person or organization has a right under this Coverage Part: a. To join us as a party or otherwise bring us into a "suit" asking for damages from i1Ni1;IcIiE SHAW b. To sue us on this Coverage Part unless all of its terms have been fully complied ~~ty City Attornay A person or organizetion mey sue us to recover on an agreed settiement or on a final judgment against an In- sured obtained after an actual trial; b~ we will not be liable for damages that are not payable under the terms of this Coverage Part or that are in excess of the applicable limit of insurance. An agreed settlement means a settle- ment and release of iabllly signed by us, the Insured and the claimant or the claimanfs legal representative. 4. Other Insurance 11 other valid and collectible insurance Is available to the Insured for a loss we cover under Coverages A or B of thi ur obligations are limited as follows: a. Primary Insurance except when b. below applies. If this insurance is primary, our obligations are not aHected unless any of the other Insurance Is also primary. Then, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over: (1) Any of the other insurance, whether primary, excess, contingent or on any other basis: (a) That is Fire, Extended Coverage, Builders Risk, Installation Risk or similar coverage for "your work": (b) That is Fire insurance for premises rented to you or temporarily occupied by you with permission of the owner; CGOO 01 07 98 Copyright, Insurance Services OffICe, Inc., 1997 COMMERCIAL GENERAL LIABILITY Page 9 of 14 ~ - (c) That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; or (d) If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section 1- Coverage A - Bodily Injury And Property Damage Liability. (2) Any other primary insurance avaUable to you covering liability for damages arising out of the premises or op- erations for which you have been added as an additional insured by attachment of an endorsement. When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other Insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance Is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1 ) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self-insured amounts under all that other insurence. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insur- ance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total appli- cable limits of insurance of all insurers. S. Premium Audit a, We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as advance pramlum Is a deposit premium only. At the close of each audit period we will compute the earned premium for that period. Audit premiums are due and payable on notice to the first Named Insured. If the sum of the advance and audit premiums paid for the policy period is greater than the eamed premium, we win return tha excess to the first Named Insured. c. The first Named Insured must keep racords of the Information we need for premium computation, and send us copies at such times as we may request. 6. Representations By accepting this policy, you agree: a. The statements In the Declarations are accurate and complete; b. Those statements are based upon representations you made to us; and c. We have issued this policy In reliance upon your representations. 7. Separation Of Insureds Excepi with respect to tl;6 lJmits of insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this Insurance applies: a. As if each Named Insured were the only Named Insured; end b. Separately to each insured against whom claim is made or "suif' Is brought. 8. Transfer Of Rights Of Recovery Against Others To Us If the Insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. 9. When We Do Not Renew If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the nonrenewal not less than 30 days before the expiration date. lf notice is mailed, proof of mailing will be sufficient proof of notice. . . COMMERCIAL GENERAL LIAalLlTY Page 10 of 14 Copyright, Insurance Services Office, Inc., 1997 CG 00 01 07 18 .