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HomeMy WebLinkAboutSAMEIS HOLDINGS (TRACKING SOLUTIONS) 1A - 2012INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES 9-/-3 CLERK OF COUNCIL DATE: MAR 5 N-2011-114-001 O ACC /U??l (Z) FIRST AMENDMENT TO CONSULTANT AGREEMENT ?i THIS FIRST AMENDMENT TO AGREEMENT is entered into this I' day of December, 2012, by and between Sameis Holdings, LLC dba Dispatch and Tracking Solutions (hereinafter "Consultant"), 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. City and Consultant entered into Agreement #N-2011-114, dated October Is`, 2011, and (hereinafter said Agreement") by which City retained Consultant having special knowledge and skill in the field of providing the City with computer software, professional services, training and support for an electronic law enforcement tow services management system. B. In accordance with the terms and conditions of said Agreement, the parties wish to amend said Agreement to provide additional support and maintenance of the software, extend the term of the software support and maintenance provisions and increase the compensation to pay for the services provided during the extended term. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES a. Consultant shall perform those services as set forth in Exhibit B attached herein and incorporated by reference. 2. COMPENSATION a. City and Consultant agree that there will be no charges to the City for the installation, licensing, upgrading, modification, enhancement, and/or maintenance of the software necessary to support the system implemented by Consultant. In addition, there will be no charges to the City for any customer service related to the system. b. Consultant will agree to accept a set fee per transaction, as detailed in Exhibit A to this Agreement. 3. TERM a. This Agreement shall commence on the date first written above and terminate on the I S; December 2013, unless terminated earlier in accordance with Section 12 of the Agreement. The term of this Agreement may be extended upon a writing executed by the Chief of Police or his/her designee and the City Attorney. 4. TERMS AND CONDITIONS a. City and consultant agree to be bound by the additional terms and conditions set forth in the attached Schedule C. Except as hereinabove modified, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR , Clerk of the Council CITY OF SANTA ANA C?sr PAUL M. WALTERS City Manager APPROVED AS TO FORM: SONIA R CARVALHO City Attorney Sameis Holdings, LLC By:?L1 LAURA A. ROSSINI Assistant City Attorney (Nade) Ao/ZLd.3 (Title) 2 Schedule C Terms and Conditions SUBSCRIPTION AND SERVICES. 1.1. Subscription and Services Provided by Company. Subject to Client's compliance with these terms and conditions and the associated Subscription Agreement and Schedules A and B attached hereto (collectively, this "Agreement"), including, without limitation, ensuring the payment in full of all applicable fees by Operators, Company agrees to provide Client with a subscription for use of a hosted software system with a shared database through which Client can record, manage and access information regarding the towing of vehicles, and individuals affected by towing in Entities' jurisdictions can obtain information pertaining to towed vehicles via the Internet as set forth on the Subscription Agreement (the "System"). SYSTEM ACCESS RIGHTS AND RELATED SERVICES. 2.1. Grant of System Access Rights. Subject to Client's compliance with the terms and conditions of this Agreement, including, without limitation, payment of applicable fees, Company hereby grants to Client, and Client hereby accepts, a limited, personal, non-exclusive, non-transferable, non-assignable, non-sublicensable subscription to access and use the System hosted on Company's server and accessible via the Internet and to use and display the client output from the System. 2.2. Related Services. In connection with the System access rights, the Company agrees to (i) make the System accessible for data entry and review by Client; and (ii) launch a website that will permit the general public to search for and retrieve information pertaining to towed vehicles in Entities' jurisdictions. PROPRIETARY RIGHTS AND RESTRICTIONS. 3.1. Intellectual Property Ownership. Client acknowledges and agrees (i) that Company retains all right, title, and interest in all intellectual property underlying or associated with the System, and (ii) that Company is not Client's employee, and no materials associated with the System are works made for hire. Company retains the exclusive right to reproduce, publish, sell, and license use of the System. At no time during the term of this Agreement or any time thereafter shall Client challenge the validity of any intellectual property rights, including any copyright, patent or trademark, asserted by the Company with respect to the System. Client further acknowledges that use of the System by Client has substantial commercial value to Client. The System includes commercial computer software programs developed exclusively at private expense. 3.2. Use of and Rights in Transaction Data. Company and Client acknowledge and agree that in connection with Client's use of the System and Company's provision of services to Client in connection therewith, each of Client and Company shall have access to and may be called on to transmit, process and/or store certain transaction data, which may include personal, unique or sensitive information regarding towed vehicles and the owners thereof, and other information ("Transaction Data"). Each Party hereto shall be solely responsible for the use, protection and security of all Transaction Data while it is processed or stored within such Party's systems; provided, however, that once any Transaction Data is transmitted to and received by Company, as between Company and Client, such Transaction Data shall become the sole property of Company, and Company shall exclusively own all right, title and interest in, and shall have the sole right to use and control, such Transaction Data. Notwithstanding the foregoing, to the extent Client retains any Transaction Data in which Company owns all rights, Client shall continue to fulfill its obligations to treat such Transaction Data as confidential information in accordance with this Agreement. 3.3. Transaction Data. Each Party hereto shall be solely responsible for the use, protection and security of all Transaction Data while it is processed or stored within such Party's systems; provided, however, that once any Transaction Data is transmitted to and received by Company, as between Company and Client, such Transaction Data shall become the sole property of Company, and Company shall exclusively own all right, title and interest in, and shall have the sole right to Schedule C - Santa Ana Tow Operators use and control, such Transaction Data. Notwithstanding the foregoing, to the extent Client retains any Transaction Data in which Company owns all rights, Client shall continue to fulfill its obligations to treat such Transaction Data as confidential information in accordance with this Agreement. 3.4. Limitations. Client shall not disassemble, decompile, or otherwise reverse engineer any component of the System. Client shall not and shall not permit any third party to access the System in any automated way, including without limitation, screen scraping or writing a script to generate reports or extract data that has not been expressly approved by Company. Except as may be expressly authorized in this Agreement, Client may not use any component of the System to provide services to third parties as a service bureau or data processor. Client agrees to use the System and any Transaction Data solely in connection with management of towed vehicles within the jurisdictions identified in the Subscription Agreement, as the same may be expanded from time to time to reflect additional areas added through inter-local agreements. 4. IMPLEMENTATION AND TRAINING. 4.1. Implementation. Company shall implement the System in accordance with the implementation work plan as identified in the Subscription Agreement. Client remains responsible for providing and maintaining all hardware and bandwidth necessary to access the System via the Internet. 4.2. Training. Company will provide up to the number of hours of `train the trainer' training on use of the System by Client in such number of session(s) as is specified on the Subscription Agreement for no additional charge. Client is responsible for arranging the attendance of appropriate personnel and, if necessary, providing facilities appropriate for such training activities. PAYMENTS BY CLIENT. 5.1. Fees. In consideration of Company's provision of the System and other valuable consideration hereunder, Client shall ensure the payment by Operators of the fees, as detailed on Schedule A of the Subscription Agreement attached hereto. Client will reimburse Company for any and all expenses Company may incur, including reasonable attorneys' fees, in collecting any amounts past due under this Agreement. Any fees not paid within thirty (30) days of the due date shall be subject to the lesser of a one and one-half percent (1.5%) interest charge per month or the highest interest rate allowed by law. 5.1.1 Regular Monthly Payments. On or before the tenth day of each calendar month, Company will invoice Operators for the number of vehicles entered into the System during the previous month, multiplied by the applicable Rate Per Transaction, as set forth in the attached Schedule A of the Subscription Agreement. 5.1.2 Implementation and Training Fees. If Client elects to purchase optional implementation, configuration and/or training services from Company, Client shall pay Company the associated fees set forth on the Subscription Agreement upon execution of this Agreement. 6. WARRANTIES AND COVENANTS. 6.1. Software Warranty. Company warrants to Client that the System will operate in accordance with the User manual to be provided to Client in all material respects for the length of the term of this Agreement. 6.2. Remedy. It is understood and agreed by the Parties that Client's sole and exclusive remedy for any breach of the warranties or covenants set forth in Section 6.1 shall be to notify Company of the applicable non-conformity, in which case Company shall use commercially reasonable efforts to correct such non-conformity. Client will provide to Company access, in a timely manner, to any technical support, facilities, hardware, software or information necessary for Company to complete such work. Notwithstanding the foregoing, in no event shall Company be responsible for any non- conformity to the foregoing warranty which arises as a result of (i) any act or omission of Client; (ii) any person other than Company making revisions or modifications to the System; or (iii) any failure of any component of hardware, software or equipment or other third-party materials not supplied by Company. Schedule C - Santa Ana Tow Operators 6.3. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS ARTICLE 6, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SYSTEM, THE SERVICES PROVIDED BY COMPANY, OR ANY OTHER MATTER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON- INFRINGEMENT OR ANY WARRANTIES ARISING FROM TRADE PRACTICE OR COURSE OF DEALING. 6.4. Client Warranty. Client hereby represents, warrants and covenants that (i) Client will ensure that its employees use the System for all vehicle tows within the jurisdictions identified in the Subscription Agreement during the term of this Agreement; (ii) all information provided by Client to Company is true and correct in all material respects, and Client will update such information as necessary to cause it to continue to be true and correct in all material respects at all times during the term of this Agreement; (iii) Client's execution of and performance under this Agreement has been authorized by all necessary organizational action and does not conflict with any existing agreement of Client; (iv) Client shall use its best efforts to protect the security of the System and the Transaction Data, to the extent within Client's control; and (v) Client shall maintain the security and confidentiality of log in and passwords and shall be responsible for all activity using log in and passwords assigned to Client. LIMITATION OF LIABILITY. 7.1. Limitation of Liability. COMPANY'S LIABILITY FOR DAMAGES, FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CLIENT TO COMPANY. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY SHALL HAVE NO LIABILITY TO CLIENT OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF THE FRAUDULENT OR UNAUTHORIZED CONDUCT OF ANY EMPLOYEE OR AGENT OF CLIENT. INDEMNIFICATION. 8.1. Indemnities. 8.1.1 Infrig n e merit. Company shall indemnify and hold Client harmless from and against any claims, suits or actions against Client arising out of or resulting from any final judgment that the System infringes any currently existing United States patent or copyright, or misappropriates any trade secret, of any third party. In case any use of the System is finally enjoined, Company shall, at its sole option and expense, in its sole discretion, and as Client's sole remedy, either: (a) secure for Client the right to continue to use the System; (b) replace the System to avoid such infringement, provided that any such substituted or modified system shall perform substantially the same functions as the System and Company's obligations with respect to the System under this Agreement shall apply to any such substituted or modified system or (c) terminate this Agreement and refund to Client any fees paid by Client for tows that have not yet been used. Company shall have no liability for any claim of infringement based on (i) modifications of the System by Client or third parties; or (ii) use of the System other than as allowed under the terms of this Agreement. THE FOREGOING PARAGRAPH STATES THE ENTIRE LIABILITY OF COMPANY AND THE EXCLUSIVE REMEDIES OF CLIENT WITH RESPECT TO INFRINGEMENT OF PROPRIETARY RIGHTS. 8.1.2 Use. Client shall defend, indemnify and hold Company harmless from and against any claim, suit or action by any third party against Company relating to, arising out of or resulting from Client's use of the System, Client's violation of applicable law, or any claim by any party receiving services from Client in connection with the System. 8.2. Indemnification Procedures. 8.2.1 Defense. Promptly after any Party entitled to indemnification under this Article 8 (individually, an "Indemnitee") obtains knowledge of the potential existence or commencement of any third-party claim, suit, or action, in respect of which an Indemnitee is or may be entitled to indemnification under this Agreement (a "Claim"), such Indemnitee shall promptly notify the other party (the "Indemniter") of such Claim in writing setting forth in Schedule C - Santa Ana Tow Operators reasonable detail the specific facts and circumstances relating to such Claim and the amount of losses subject to the Claim (or an estimate thereof if the actual amount is not known or not capable of reasonable calculation); provided, however, that any failure to give such notice will not waive any rights of the Indemnitee except to the extent that the rights of the Indemnitor are actually prejudiced thereby. The Indemnitor shall assume the defense and settlement of such Claim with counsel reasonably satisfactory to the Indemnitee at the Indemnitor's sole risk and expense, provided, however, that the Indemnitee (i) shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense; (ii) shall reasonably cooperate with the Indemnitor in the defense and any settlement of such Claim in any manner reasonably requested by the Indemnitor; (iii) shall have the right to pay or settle such Claim at any time in which event the Indemnitee shall be deemed to have waived any right to indemnification therefor by the Indemnitor; and (iv) shall have the right to consent in writing to any settlement provided that such consent shall not be unreasonably withheld. 8.2.2 Claims. If the Indemnitor fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume the defense and settlement of such Claim, provided, however, that (i) the Indemnitor shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnitee shall not settle such Claim without the written consent of the Indemnitor, which shall not be unreasonably withheld. The Indemnitor shall be liable to the Indemnitee for all costs and expenses incurred in connection with the defense and settlement of any Claim pursuant to Section 8.2.1. 8.3. Liabili . Upon a determination of liability in respect of this Article 8, the Indemnitor shall pay the Indemnitee the amount so determined within ten (10) business days after the date of determination (such tenth business day, the "Due Date"). If there should be a dispute as to the amount or manner of determination of any indemnity obligation owed under this Agreement, the Indemnitor shall nevertheless pay when due such portion, if any, of the obligation as shall not be subject to dispute. The difference, if any, between the amount of the obligation ultimately determined as properly payable under this Agreement and the portion, if any, theretofore paid shall bear interest as provided below. Upon the payment in full of any claim, either by setoff or otherwise, the party or entity making payment shall be subrogated to the rights of the Indemnitee against any person, firm, corporation or other entity with respect to the subject matter of such claim. If all or part of any indemnification obligation under this Agreement is not paid when due, then the Indemnitor shall pay the Indemnitee interest on the unpaid amount of the obligation for each day from the Due Date until payment in full, payable on demand, at the rate set forth above for late payments. 9. TERM AND TERMINATION OF SUBSCRIPTION AND AGREEMENT 9.1. Term. This Agreement shall begin on the Date of Subscription Commencement and shall continue for the Term set forth in the Subscription Agreement attached hereto, unless earlier terminated in accordance with this Article 9. UPON THE EXPIRATION OF THE TERM OF THIS AGREEMENT SET FORTH IN THE SUBSCRIPTION AGREEMENT ATTACHED HERETO, THIS AGREEMENT SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE YEAR RENEWAL TERMS, AT THE RATE PER TOW THEN IN EFFECT, UNLESS EITHER PARTY GIVES THE OTHER PARTY WRITTEN NOTICE OF ITS DESIRE NOT TO RENEW AT LEAST SIXTY DAYS PRIOR TO THE END OF THE THEN CURRENT TERM. 9.2. Termination by Client. Client may terminate this Agreement if: (i) the Company breaches any material term or condition of this Agreement and fails to cure such breach within sixty (60) days after receipt of written notice of the same; or (ii) Company becomes the subject of a voluntary proceeding relating to insolvency, receivership, liquidation, bankruptcy or composition for the benefit of creditors and such petition or proceeding is not dismissed within sixty (60) days of filing. Upon termination of this Agreement by Client, Company may continue to provide services to Entities and other storage lot operators under Subscription Agreements. 9.3. Termination by Company. Company may, at its discretion, terminate this Agreement if: (i) the appropriate jurisdiction terminates; (ii) Client breaches any material term or condition of this Agreement and fails to cure such breach within sixty (60) days after receipt of written notice of same, (iii) Client is delinquent in the payment of fees pursuant to this Agreement, and such non-payment is not cured within ten (10) days after delivery of written notice from the Company, or (iv) Client becomes the subject of a voluntary proceeding relating to insolvency, receivership, liquidation, bankruptcy or composition for the benefit of creditors and such petition or proceeding is not dismissed within sixty (60) days of filing. Upon termination of this Agreement by Company, Company may continue to provide services to Entities and other storage lot operators under Subscription Agreements. Schedule C - Santa Ana Tow Operators 9.4. Survival. The following sections shall survive termination or expiration of this Agreement: Articles 3, 7, 8, 9, 11 and 12; Sections 6.2 through 6.4, as well as any obligation to pay fees arising prior to termination or expiration. 10. MARKETING PROGRAMS. 10.1. Promotional Efforts. Client agrees to participate with Company, at Company's request, in a joint press release ("Press Release"). The Press Release will be issued on a mutually agreed upon date. Client and Company must both approve the Press Release in advance, such approval not to be unreasonably delayed or withheld. 10.2. Client Acknowled ement. Client agrees that Company may disclose Client as a customer of Company. All trademarks, service marks, trade names, logos or other words or symbols ("Marks") identifying Company are, and will remain, the exclusive property of Company. Except as set forth herein, no license to use Company's Marks or logo is granted or implied hereunder. 10.3. Exclusivity. Client agrees that, during the term of this Agreement, it shall not enter into any agreement with any third party providing for substantially similar services as those provided to Client by Company hereunder or otherwise use any third party system that performs substantially the same functions as the System. 11. LEGAL COMPLIANCE 11.1. Company. Company covenants that, to the extent any portion of the System is deemed not to be in compliance with any applicable federal law or regulation governing the use of the System, it will use commercially reasonable efforts to modify or enhance the System to remedy such non-compliance as soon as reasonably practicable. 11.2. Client. Client covenants that, during the term of this Agreement, Client's operations in connection with the System will be in compliance with all applicable laws and regulations, including applicable laws and regulations relating to the storage, transmission and protection of personal information of individuals and that Client will maintain any required licenses or permits in connection therewith. 11.3. Requests for Information. Client shall promptly comply with all reasonable requests for information from Company, provided that the subject matter of such requests relates to Client's use of the System, Client's compliance with its obligations under the Agreement, or the proper payment of fees. 12. GENERAL PROVISIONS. 12.1. Force Majeure. Neither Party shall be liable for any loss, damages or penalty (other than the obligation to pay money) resulting from causes beyond the reasonable control of such Party, including, but not limited to: force majeure, acts of God, labor unrest, fire, explosion, earthquake, accident, acts of public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labor or material shortages, embargoes, failure or delays in transportation, acts of governmental authorities or judicial action, or material interruption in telecommunications or utility service. Further, Company will not be held in breach of this Agreement if it fails to perform its obligations under this Agreement to the extent such nonperformance is attributable to acts, errors or omissions by Client or a third party supplier independently hired by Client. 12.2. Iniunctive Relief. Client acknowledges that any breach by Client of Article 1, 2, or 3 of this Agreement may cause Company irreparable harm not compensable with money damages, and that in the event of such breach, Company shall be entitled to seek injunctive relief, without bond, from any court of competent jurisdiction. 12.3. Assignment. Neither Party shall assign its rights, duties or obligations under this Agreement without the prior written consent of the other Party and such consent shall not be unreasonably withheld. Notwithstanding the foregoing, Company may assign this Agreement to an affiliate or in connection with any merger, reorganization or sale of substantially all of Company's assets used to provide the System or otherwise in connection with a change of control transaction without any consent from Client. Schedule C - Santa Ana Tow Operators 12.4. Relationship of the Parties. Nothing in this Agreement is intended or shall be construed to create or establish any agency, partnership or joint venture relationship between the Parties. The Parties expressly disclaim such relationship, agree that they are acting solely as independent contractors hereunder and agree that the Parties have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein. Client has no authority to act as agent for, or to incur any obligations on behalf of or in the name of, Company. Company and Client shall be responsible for and shall pay promptly all federal, state and municipal taxes, charges and assessments with respect to its employees or agents, including but not limited to, social security, unemployment, federal and state withholding and other taxes. 12.5. Notices. All notices required or permitted to be given by one Party to the other under this Agreement shall be sufficient if sent by certified mail, return receipt requested, to the Parties at the respective addresses set forth on the Subscription Agreement attached hereto, or to such other address as the Party to receive the notice has designated by written notice to the other Party. 12.6. Severability. If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby and the illegal provision will be replaced with a legal provision that encapsulates the original intent of the Parties. 12.7. Entire Ag-reement; Amendment: Waiver. This Agreement (which includes the Subscription Agreement attached hereto) constitutes the entire agreement between the Parties with respect to the subject matter and supersedes any prior or contemporaneous agreement or understanding, whether written or oral, if any, between the Parties with respect to such subject matter. In the event of a conflict between these terms and conditions and the Subscription Agreement attached hereto, the Subscription Agreement shall control. This Agreement shall be construed as if both Parties had equal say in its drafting, and thus shall not be construed against the drafter. This Agreement may be modified only by a further written agreement signed by all of the Parties hereto. No waiver of breach of any provision of this Agreement by either Party shall constitute a waiver of any subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an officer of the other Party. 12.8. Action. No action arising out of or otherwise associated with this Agreement or the rights granted hereunder, regardless of form, may be brought by either Party more than two years after the cause of action has accrued. 12.9. Governing- Law. This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of California, excluding its rules of conflicts of law. The Parties agree that the exclusive venues for any dispute arising out of this Agreement shall be the courts for the County of Orange, California or in the United States District Court for the Central District of California and the Parties each submit to the jurisdiction of such courts. The captions appearing in this Agreement have been inserted as a matter of convenience and in no way define, limit or enlarge the scope of this Agreement or any of the provisions hereto. Schedule C - Santa Ana Tow Operators DISPATCH & TRACKING SOLUTIONS Subscription Agreement This Subscription Agreement is made and entered into as of the date set forth below, between Sameis Holdings, LLC dba Dispatch & Tracking Solutions ("Company") and the party identified below as Client (collectively, the "Parties"). This Subscription Agreement is subject to the terms and conditions set forth in Schedule A - Pricing, Schedule B - Implementation, and Schedule C - Terms and Conditions. CLIENT: COMMENCEMENT DATE: fl?_3r9 RATES PER TRANSACTION: EXCLUSIVE USE: OPERATOR AGREEMENTS: Santa Ana Police Department City of Santa Ana, CA October 1, 2011 Two (2) years See attached Schedule A. Client shall use and shall require all Operators to use the Company's most recent, updated, upgraded software program, to dispatch and track all towed vehicles, via the Company's web-based portal. All Client tow requests shall be made utilizing this program. Client shall require all police authorized towers ("Operators") performing Client tows to execute an agreement similar to this agreement. If an Operator at any time fails to be in full compliance with all of the terms and conditions of such agreement, Client shall remove such Operator from its towing rotation until such time as the Operator becomes compliant. IN WITNESS WHEREOF, the Parties hereto have caused this Subscription Agreement, together with the attached Schedules A, B, and C, to be executed by their authorized agents as of this _ day of 2011. COMPANY: Reba Hildebrand Managing Director EIN:27-2800524 CLIENT: Paulo M. Walters Chief of Police NOTICE AND CONTACT: NOTICE AND CONTACT: Dispatch & Tracking Solutions Santa Ana Police Department Reba Hildebrand General Manager 3737 Birch Street, Suite 200 Newport Beach, CA 92660 949 567-7008 rhildebranda.dtsdispgtch.com Pricing Term Rate Per Transaction October 1, 2011- September 30, 2012 j $ 9.00 October 1, 2012 - September 30, 2013 $ 9.50 Training or support not covered under the original Implementation Plan will be charged at the rate of $100 per hour. Software enhancements will be quoted and charged on a case by case basis. Implementation Plan Implementation shall consist of the following: 1. Company shall create an Action Plan for implementation and deployment. 2. Client sbaLU identify and designate System Administrator(s) for setup procedure. I Company to assist Client in completion of Profile & Implementation Workbook. 4. Company will setup an account(s) in the System using the information provided by Client. 5. Company will establish usermme(s)lpassword(s) for Client and Operator personnel using established naming conventions and assign the appropriate roles. b. Client will review and approve security rights and identify roles for various departments and users. 7. Client and Company will review the following functions in the System production environment: a. Logging into the System, b. Review and approval of administration setup, including: i. Security rights for users and assigned roles, ii. Operator information and call assignment options, iii. Beats or areas for tow rotation, iv. Operators for rotation within each beat or area, v. Authority or Reason Codes and behavior of each, such as automatic hold and charges, vi. Cancellation reasons and behavior, and vii. Releasing of hold on vehicle, c. Release Form process allowing the Operator to release the vehicle, d. Operator release of a vehicle and verification of charges, e. Letter generation for vehicle Registered or Legal Owner or other interested party, f. Viewing and creating reports including. i. Bill and processing of payment for Operators' payment of charges, ii. Generation of Referral Fee Report. 8. Company provides contact information and procedures for specific enhancements or System requests. 9. Anomalies identified and corrected ACOR 7 0 CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDDIYYYY) 12/12/2012 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement s). PRODUCER CONTACT NAME: Angela Osborn Bowen Miclette & Britt PHONE FAX , Exti713-880-7100 A/C No):713-880-7166 Insurance Agency, LLC E-MAIL 1111 North Loop West #400 ADDRESS: r , Houston TX 77008 INSURERS AFFORDING COVERAGE NAIC # INSURER A :National Eire Ins Cc of Hartford 20478 INSURED SAMEISHOLD - INSURER B:Continental Casualty 4 SAMEIS Holdings, LLC INSURER C:A r n Casualty of Reading, PA 20427 dba Dispatch & Tracking Solutions INSURERD: 2121 Sage #270 Houston TX 77056 INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: 1916718975 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL UBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER MMIDDIYYYY MM/DD/YYYY LIMITS A GENERAL LIABILITY 025947023 1/12/2012 /12/2013 EACH OCCURRENCE $1,000,000 X DAMAGE TO RENTED COMMERCIAL GENERAL LIABILITY PREMISES Ea occurrence $300,000 CLAIMS-MADE X7 OCCUR MED EXP (Any one person) $10,000 PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER - PRODUCTS -COMP/OP AGG $2,000,000 1 POLICY PRO LOC 1 $ A AUT OMOBILE LIABILITY 4025947023 1/12/2012 /12/2013 Ea accident $1,000,000 ANY AUTO BODILY INJURY (Per person) $ ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS AUTOS X X NON- OWNED PROPERTY DAMAGE $ HIREDAUTOS AUTOS Per accident) $ B X UMBRELLA LIAB H OCCUR 4025947149 1/12/2012 /12/2013 EACH OCCURRENCE $1,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $1,000,000 DED X RETENTION $10,000 $ C WORKERS COMPENSATION 030665655 1/12/2012 /12/2013 X STATU- OTH- AND EMPLOYERS' LIABILITY LIMITS YIN ANY PROPRIETOR/PARTNER/EXECUTIVE ? NIA E.L. EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatoryin NH) E.L. DISEASE - EA EMPLOYE $1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) AS TO FORM Excluded under Workers Compensation: AP Vic Samuels (? ? yy Additional Insured is afforded as per the attached endorsement. Waiver of Subrogation is afforded as per the attached endorsement. Laura A. Rossini Assistant City Attorney I.CR I Ir1%.A 1 C r1VLLlCR I.AIYI.GLLA I IVIV SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Santa Ana Police Department; City of Santa Ana it's ACCORDANCE WITH THE POLICY PROVISIONS. officers, employees, agents, volunteers & representatives 60 Civic Center Plaza AUTHORIZED REPRESENTATIVE Santa Ana CA 92710 ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD cNA SB-300022-B (Ed. 07109) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF SUBROGATION SCHEDULE Name Of Person Or Organization: Any person or organization on whose behalf you are required to obtain this waiver of our right to recover from iinrl?,r a wri ttcn contrF..ct or agrc c me nt_. * Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Declarations. This endorsement modifies insurance provided under the following.. M BUSINESSOWNERS COMMON POLICY CONDITIONS We waive any right of recovery we may have against: 0 1. Any person or organization shown in the Declarations-, or "g 2. Any person or organization with which you have a contract that requires such a waiver. PPROVED AS TO FORM Laura A. Rossini Assistant City Attorney SB-300022-B Includes copyrighted material of Insurance Services Orrice, Inc., with its permission. Page 1 of 1 (Ed. 07109) Copyright, Insurance Services Office, Inc., 2002 CNA SB-146932-D (Ed. 07/09) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED - LIABILITY EXTENSION This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM Coverage afforded under this extension of coverage endorsement does not apply to any person or organization covered as an additional insured on any other endorsement now or hereafter attached to this Policy. N N °s 0 1. ADDITIONAL INSURED - BLANKET VENDORS WHO IS AN INSURED is amended to include as an additional insured any person or organization (referred to below as vendor) with whom you agreed, because of a written contract or agreement to provide insurance, but only with respect to "bodily injury" or "property damage arising out of "your products" which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions: 1. The insurance afforded the vendor does not apply to: a. "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; c. Any physical or chemical change in the product made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; g. Products which, after disirbution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor, or employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained in Subparagraphs d. or f.; or (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2. This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 3. This provision 2. does not apply to any vendor included as an insured by an endorsement issued by us and made a part of this Policy. 4. This provision 2. does not apply if "bodily injury" or "property damage" included within the "products- completed operations hazard" is excluded either by the provisions of the Policy or by endorsement. 2. MISCELLANEOUS ADDITIONAL INSUREDS WHO IS AN INSURED is amended to include as an insured any person or organization (called additional insured) described in paragraphs 2.a. through 2.h. below whom you are required to add as an additional insured on this policy under a written contract or agreement but the written contract or agreement must be: 1. Currently in effector becoming effective during the term of this policy; and 2. Executed prior to the "bodily injury," "property damage" or "personal and advertising injury," but Only the following persons or organizations are additional insureds under this endorsement and coverage provided to such additional insureds is limited as provided herein: a. Additional Insured -Your Work h. "Bodily injury" or "property damage" arising That person or organization for whom you do out of the sole negligence of the vendor for its work is an additional insured solely for liability own acts or omission or those of its due to your negligence specifically resulting SB-146932-D PROVED O FORM Page 1 of 5 (Ed. 07/09) -C?? ? ? Laura A. Rossini Assistant City Attorney SB-146932-D (Ed. 07/09) from your work for the additional insured which is the subject of the written contract or written agreement. No coverage applies to liability resulting from the sole negligence of the additional insured. The insurance provided to the additional insured is limited as follows: (1) The Limits of Insurance applicable to the additional insured are those specified in the written contract or written agreement or in the Declarations of this policy, whichever is less. These Limits of Insurance are inclusive of, and not in addition to, the Limits of Insurance shown in the Declarations. (2) The coverage provided to the additional insured by this endorsement and paragraph F.9. of the definition of "insured contract" under Liability and Medical Expenses Definitions do not apply to "bodily injury" or "property damage" arising out of the "products-completed operations hazard" unless required by the written contract or written agreement. (3) The insurance provided to the additional insured does not apply to "bodily injury," "property damage," or "personal and advertising injury" arising out of the rendering or failure to render any professional services. b. State or Political Subdivisions This insurance does not apply to "bodily injury," "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality. c. Controlling Interest Any persons or organizations with a controlling interest in you but only with respect to their liability arising out of: (1) Their financial control of you; or (2) Premises they own, maintain or control while you lease or occupy these premises. This insurance does not apply to structural alterations, new construction and demolition operations performed by or for such additional insured. d. Managers or Lessors of Premises A manager or lessor of premises but only with respect to liability arising out of the ownership, maintenance or use of that specific part of the premises leased to you and subject to the following additional exclusions: This insurance does not apply to: (1) Any "occurrence" which takes place after you cease to be a tenant in that premises; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such additional insured. A state or political subdivision subject to the following provisions: (1) This insurance applies only wilh respect to the following hazards for which the state or political subdivision has issued a permit in connection with premises you own, rent, or control and to which this insurance applies: (a) The existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults, street banners, or decorations and similar exposures; or (b) The construction, erection, or removal of elevators; or (2) This insurance applies only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. SB-146932-D (Ed. 07/09) e. Mortgagee, Assignee or Receiver A mortgagee, assignee or receiver but only with respect to their liability as mortgagee, assignee, or receiver and arising out of the ownership, maintenance, or use of a premises by you. This insurance does not apply to structural alterations, new construction or demolition operations performed by or for such additional insured. f. Owners/Other Interests - Land is Leased An owner or other interest from whom land has been leased by you but only with respect to liability arising out of the ownership, maintenance or use of that specific part of the land leased to you and subject to the following additional exclusions: This insurance does not apply to: (1) Any "occurrence" which takes place after you cease to lease that land; or Page 2 of 5 SB-146932-D (Ed. 07/09) (2) Structural alterations, new Damage To Property, is replaced by the construction or demolition operations following: performed by or on behalf of such k. Damage To Property additional insured. g. Co-owner of Insured Premises "Property damage" to: A co-owner of a premises co-owned by you 1. Property you own, rent or occupy, and covered under this insurance but only including any costs or expenses with respect to the co-owners liability as co- incurred by you, or any other person, owner of such premises. organization or entity, for repair, replacement, enhancement, h. Lessor of Equipment restoration or maintenance of such Any person or organization from whom you property for any reason, including prevention of injury to a person or of in lease equipment. Such person or organization damage to rs property; are insureds only with respect to their liability arising out of the maintenance, operation or 2. Premises you sell, give away or use by you of equipment leased to you by abandon, if the "property damage" such person or organization. A person's or arises out of any part of those organization's status as an insured under this premises; endorsement ends when their written contract 3• Property loaned to you; or agreement with you for such leased equipment ends. 4. Personal property in the care, With respect to the insurance afforded these custody or control of the insured; additional insureds, the following additional 5. That particular part of any real exclusions apply: property on which you or any This insurance does not apply: contractors or subcontractors working directly or indirectly in your behalf are (1) To any "occurrence" which takes place performing operations, if the "property after the equipment lease expires; or damage" arises out of those (2) To "bodily injury;" "property damage" or operations; or "personal and advertising injury" arising 6. That particular part of any property out of the sole negligence of such that must be restored, repaired or additional insured. replaced because "your work" was Any insurance provided to an additional insured incorrectly performed on it. designated under paragraphs b. through h. above Paragraph 2 of this exclusion does not does not apply to "bodily injury" or "property apply if the premises are "your work" and m damage" included within the "products-completed were never occupied, rented or held for operations hazard." rental by you. 3. The following is added to Paragraph H. of the Paragraphs 1, 3, and 4, of this exclusion s BUSINESSOWNERS COMMON POLICY do not apply to "property damage" (other CONDITIONS: than damage by fire or explosion) to H. Other Insurance premises: (1) rented to you: 4. This insurance is excess over any other insurance naming the additional insured (2) temporarily occupied by you with the as an insured whether primary, excess, permission of the owner, or contingent or on any other basis unless a (3) to the contents of premises rented to written contract or written agreement you for a period of 7 or fewer specifically requires that this insurance be consecutive days. either primary or primary and noncontributing. A separate limit of insurance applies to Damage To Premises Rented 4. LEGAL LIABILITY- DAMAGE TO PREMISES To You as described in Section D - Liability and Medical Expenses Limits of A. Under B. Exclusions, 1. Applicable to Insurance. Business Liability Coverage, Exclusion k. SB-146932-D Page 3 of 5 (Ed. 07/09) SB-146932-D (Ed. 07109) Paragraphs 3, 4, 5, and 6 of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraph 6 of this exclusion does not apply to "property damage" included in the "products-completed operations hazard." B. Under B. Exclusions, 1. Applicable to Business Liability Coverage, the last paragraph of 2. Exclusions is deleted and replaced by the following: Exclusions c, d, e, f, g, In, i, k, I, m, in, and o, do not apply to damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner or to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to this coverage as described in Section D. Liability And Medical Expenses Limits Of Insurance. (5) Any trustee, if you or an additional insured is a trust: or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity. This paragraph e. applies separately to you and any additional insured. 6. Bodily Injury Section F, Liability and Medical Expenses Definitions, item 3. "Bodily Injury" is deleted and replaced with the following: "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury by that person at any time which results as a consequence of the bodily injury, sickness or disease. 7. Expanded Personal and Advertising Injury Definition C. The first Paragraph under item 5. Damage To Premises Rented To You Limit of Section D. Liability And Medical Expenses Limits Of Insurance is replaced by the following: The most we will pay under Business Liability for damages because of "property damage" to any one premises, while rented to you, or temporarily occupied by you. with the permission of the owner, including contents of such premises rented to you for a period of 7 or fewer consecutive days, is the Damage to Premises Rented to You limit shown in the Declaration. 5. Broad Knowledge of Occurrence The following items are added to E. Businessowners General Liability Conditions in the Businessowners Liability Coverage Form: e. Paragraphs a. and b. apply to you or to any additional insured only when such "occurrence," offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) Any partner, if you or an additional insured is a partnership; (3) Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or an additional insured is a corporation; SB-146932-D (Ed. 07109) The following is added to Section F. Liability and Medical Expenses Definitions, item 14. Personal and Advertising Injury, in the Businessowners General Liability Coverage Form: In. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is. Not done intentionally by or at the direction of. a. The insured; or b. Any "executive officer," director, stockholder, partner, member or manager (if you are a limited liability company) of the insured; and 2. Not directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person or person by any insured. B. The following is added to Exclusions, Section B.: (15) Discrimination Relating to Room, Dwelling or Premises Caused by discrimination directly or indirectly related to the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any room, dwelling or premises by or at the direction of any insured. Page 4of5 5B-146932-D (Ed. 07/09) (16) Fines or Penalties Personal and Advertising Injury Coverage Fines or penalties levied or imposed by a does not apply to policies issued in the states governmental entity because of of New York or Ohio. discrimination. D. This provision (Expanded Personal and C. This provision (Expanded Personal and Advertising Injury) does not apply if Advertising Injury) does not apply to Personal and Advertising Injury Liability is discrimination or humiliation committed in the excluded either by the provisions of the Policy or by endorsement. states of New York or Ohio. Also, Expanded SB-146932-D Page 5 of 5 (Ed. 07/09) Mitre-Ramirez, Norma From: Mitre-Ramirez, Norma Sent: Monday, March 04, 2013 4:41 PM To: 'Watson, Michael' Subject: FW: Sameis Holdings, LLC, dba Dispatch and Tracking Solutions Attachments: COCSCAN@santa-ana.org_20130226_094519.pdf Hello Michael, I am following up on my prior inquiry. -----Original Message----- From: Mitre-Ramirez, Norma Sent: Tuesday, February 26, 2013 9:49 AM To: 'Watson, Michael' Subject: Sameis Holdings, LLC, dba Dispatch and Tracking Solutions Hello Michael, Please send exhibits A and B referenced in the attached agreement. Thank you, Norma Mitre 714-647-5237 1 N_ ZN - IN-®a1 EX11fBIT A Schedule A Pricing Term Rate Per Transaction October 1, 2011 - September 30, 2012 $ 9.00 October 1, 2012-September 30,;2013 $ 9.50 Training or support not covered under the original Implementation Platt will be charged at the rate of $100 per hour. Software enhancements will be quoted and charged on a case by case basis. EXHIBIT B Schedule B Implementation Plan implementation shall consist of the following: 1, Company shall create an Action Plan for implementation and deployment. 2, Client shall identify and designate System Administrator(s) for setup procedure. 3. Company to assist Client in completion of Profile &. Implementation Workbook. 4, Company will setup an account(s)'in lite System rising the information provided by Client. 5. Company will establish tsermmie(s)/password(s) for Client and Operator personnel using established naming conventions and assign the appropriate roles. 6. Client will review and approve security rights and identify roles for various departments and users; 7. Client and Company will review the following functions in the System production environment: a. Logging into the System, b. Review and approval of administration setup, including: i. Security rights for users and assigned roles, ii. Operator information and call assignment options, iii. Beats or areas for tow rotation, iv, Operators for rotation within each beat or area, v. Authority or Reason Codes and behavior of each, such as automatic hold and charges, vi. Cancellation reasons and behavior, and vii. Releasing of hold on vehicle, c, Release Form process allowing the Operator to release the vehicle, d. Operator release of a vehicle and verification of charges, e. Letter generation for vehicle Registered or Legal Owner or other interested party, f. Viewing and creating reports including; i. Bill and processing of payment for Operators' payment of charges, ii. Generation of Referral Fee Report. 8. Company provides contact information and procedures for specific enhancements or System requests. 4. Anomalies identified and corrected