Loading...
HomeMy WebLinkAbout4834 Contract Number: 4834 Vendor: COURTVIEW JUSTICE SOLUTIONS INC Subject: Software & Services - DAMION Application System Department: Legal/Info Svcs File Class: LEG 12-1 Beqin Date: 06/29/2009 End Date: 06l2812010 Review Date: 04/O1J2010 Vault Date: Comments: License effective until terminated Maintenance for 1 yr term w/auto renewal for 1 yr term(s) I � � � i i � i AGREEMENT FOR SOFTWARE AND SERVICES OF INDEPENDENT CONTRACTOR THIS AGREEMENT (hereafter Agreement) is made by and between the City of Bremerton, Washington (hereafter CITY) and CourtView Justice Solutions Inc, having its place of business at 141 Sully's Trail, Pittsford, NY 14534 (hereafter CONTRACTOR) wherein CONTRACTOR agrees to provide and CITY agrees to accept the services specified herein. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties agree as follows: 1. DESIGNATED REPRESENTATIVE. The authorized representative for the City of Bremerton, Office of the City Attorney, who at the time of execution of this agreement is Ken Bagwell, at telephone number (360) 473-5345. Steve Robichaud at telephone number 585-218-0420 is the authorized representative for CONTRACTOR. Changes in designated representatives shall be made only after advance written notice to the other party. 2. NOTICES. Any notice or consent required or permitted to be given under this Agreement shall be given to the respective parties both by em ail message and in writing, by first class mail, postage prepaid, with postal service signature confirmation required to the following individuals: To CITY: To CONTRACTOR: Ken Bagwell, Assistant City Attorney, 345 6th Street, Suite 600, Bremerton, WA 98337 Steve Robichaud, General Manager, 141 Sully's Trail, Suite 3, Pittsford, NY 14534 or at such other address or to such other person that the parties may from time to time designate. Notices and consents under this section, which are sent by mail, shall be deemed to be received five (5) days following their deposit in the U.S. mail. 3. SCOPE OF SERVICES. CONTRACTOR agrees to provide services to CITY in accordance with Exhibit A attached hereto and incorporated herein by reference. 4. TERM. CONTRACTOR shall commence performance following execution of this Agreement by CITY and end performance upon completion, unless earlier terminated. 5. COMPENSATION OF CONTRACTOR. CONTRACTOR shall be paid for performance under this Agreement in accordance with the terms of Exhibit B attached hereto and incorporated herein by reference. Billing shall be made by invoice, which shall include the contract number assigned by CITY and which is delivered to the CITY Attorney's Office following completion of the increments identified on Exhibit B. Unless otherwise specified on Exhibit B, payment shall be net thirty (30) days from presentation of invoice. 6. INDEPENDENT CONTRACTOR. CONTRACTOR shall perform all of its services under this Agreement as an independent CONTRACTOR and not as an employee of CITY. CONTRACTOR understands and acknowledges that it shall not be entitled to any of the benefits of a CITY employee, including but not limited to vacations, sick leave, administrative leave, health insurance, disability insurance, retirement, unemployment insurance, workers' compensation and protection of tenure. 7. STANDARD OF PERFORMANCE. CONTRACTOR represents that it has the skills, expertise, and licenses/permits necessary to perform the services required under this Agreement. Accordingly, CONTRACTOR shall perform all such services in the manner and according to the standards observed by a competent practitioner of the same profession in which CONTRACTOR is engaged. All products of whatsoever nature which CONTRACTOR delivers to CITY pursuant to this Agreement shall be prepared in a first class and workmanlike manner and shall conform to the standards of quality normally observed by a person practicing in CONTRACTOR's profession. Permits and/or licenses shall be obtained and maintained by CONTRACTOR without additional compensation. \ .~ 8. T AXES. CITY shall not be responsible for paying any taxes on CONTRACTOR's behalf, and should CITY be required to do so by state, federal, or local taxing agencies, CONTRACTOR agrees to promptly reimburse CITY for the full value of such paid taxes plus interest and penalty, if any. These taxes shall include, but not be limited to, the following: FICA (Social Security), unemployment insurance contributions, income tax, disability insurance, and workers' compensation insurance. Agreement 1016 9. CONFLICT OF INTEREST. CONTRACTOR covenants that CONTRACTOR presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. CONTRACTOR further covenants that in the performance of this Agreement, no person having any such interest shall be employed by CONTRACTOR. This covenant shall not prohibit CONTRACTOR from offering the same or similar software, services and products to other entities. 10. RESPONSIBILITIES OF CITY. CITY shall provide all information reasonably necessary by CONTRACTOR in performing the services provided herein. CONTRACTOR shall not be responsible for any delays caused by CITY's failure to provide information or failure to perform its obligations. 11. OWNERSHIP OF DOCUMENTS. CITY shall be the owner of the following items incidental to this Agreement upon production, whether or not completed: all data collected, all documents of any type whatsoever, and any material necessary for the practical use of the data and/or documents from the time of collection and/or production whether or not performance under this Agreement is completed or terminated prior to completion, except for computer software, which shall be owned or licensed as provided in the Exhibits. CONTRACTOR shall not release any materials under this section except after prior written approval of CITY. No materials produced in whole or in part under this Agreement shall be subject to copyright in the United States or in any other country except as provided in the Exhibits, or except as determined at the sole discretion of CITY. CITY shall have the unrestricted authority to publish, disclose, distribute, and otherwise use in whole or part, any reports, data, documents or other materials prepared under this Agreement, except for computer software, which shall be subject to the restrictions set forth in the Exhibits. 12. RECORDS. AUDIT. AND REVIEW. CONTRACTOR shall keep such business records pursuant to this Agreement as would be kept by a reasonably prudent practitioner of CONTRACTOR's profession and shall maintain such records for at least five (5) years following the termination of this Agreement. All accounting records shall be kept in accordance with generally accepted accounting practices. CITY Auditor-Controller or State of Washington's Director of Audits shall have the right to audit and review all such documents and records at any time during CONTRACTOR's regular business hours or upon reasonable notice. 13. INDEMNIFICATION AND INSURANCE. A. CONTRACTOR agrees to defend, indemnify and save harmless the CITY as set forth herein and to procure and maintain insurance in accordance with the provisions of Exhibit C attached hereto and incorporated herein by reference. B. PROPRIETARY INFRINGEMENT, INDEMNITY: Notwithstanding any language contained herein to the contrary, CONTRACTOR warrants that the software which is the subject of this Agreement does not infringe upon or violate any patent, copyright, trade secret, contract right, or any other proprietary right of any third party, within the United States. If there is a claim by any third party against CITY, CITY will promptly notify CONTRACTOR, and CONTRACTOR will defend and indemnify CITY against any loss, cost (including reasonable attorneys' fees) expense or liability arising out of such claim, regardless of the success of the claim. CONTRACTOR shall use its best efforts to promptly purchase for CITY the infringing software or procure for CITY a license at no cost to CITY, to allow CITY to continue using the software or shall modify the software to make it noninfringing. Should CONTRACTOR be unable to obtain for CITY software ownership, a license, or the equivalent, CONTRACTOR shall pay CITY the loss in value of the software. CONTRACTOR's obligation to indemnify CITY is contingent upon the CITY giving prompt notice to CONTRACTOR of any claims, permitting CONTRACTOR to defend, compromise, or settle any claim, and cooperating with the defense of any such claims. 14 NONDISCRIMINATION. CONTACTOR expressly agrees that it will not discriminate in employment or in the provision of services on the basis of any characteristic or condition upon which discrimination is prohibited by state or federal law or regulation. Agreement 2 of 6 15. NONEXCLUSIVE AGREEMENT. CONTRACTOR understands that this is not an exclusive Agreement and that CITY shall have the right to negotiate with and enter into contracts with others providing the same or similar services as those provided by CONTRACTOR as the CITY desires. 16. ASSIGNMENT. Neither the CONTRACTOR nor the CITY shall assign any of its rights or transfer any of its obligations under this Agreement without the prior written consent of the other party, nor shall either party's consent be unreasonably withheld. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. CONTRACTOR shall have the right to assign to any entity, which acquires all, or substantially all of the assets of the CONTRACTOR. Any entity which acquires all or substantially all of the assets of the CONTRACTOR shall be bound by this Agreement. 17. TITLE. CITY acknowledges that CONTRACTOR owns all right, title and interest in and to the Software, the Documentation and other information relating thereto (including all customizations and modifications developed for CITY), including all patents, trademarks, copyrights, trade secrets and other intellectual property rights. No rights, other than those granted pursuant to the License, are transferred to CITY. 18. CONFIDENTIALITY. The parties hereto acknowledge that information obtained through the execution of the terms and conditions of this Agreement includes confidential and proprietary information (hereinafter the "Confidential Information"). Each party agrees not to use Confidential Information except in accordance with the terms of this Agreement or any other agreements between the parties, and not to disclose Confidential Information to any third parties without the prior written consent of the other party, except as required by law. The parties agree that the Confidential Information does not include any information which, at the time of disclosure, is generally known by the public. CITY shall make no attempt to reverse compile, disassemble, or otherwise reverse engineer the Software or any portion thereof. These obligations of confidentiality shall survive termination of the License and this Agreement. 19. WARRANTY. CONTRACTOR warrants the Software to operate on CITY's network in all material respects as specified in the documentation and as demonstrated by CONTRACTOR. CONTRACTOR warrants as follows for all software customization made by CONTRACTOR for the CITY: (1) All software customization will continue to be supported by CONTRACTOR under its maintenance agreement with the CITY; (2) All software customizations will be preserved and will remain functional in any future software versions, revisions, or updates provided by CONTRACTOR; (3) All future software versions, revision, or updates provided by CONTRACTOR will not cause the CITY to incur any additional cost as a result of the software customizations. These provisions shall apply for as long as the CITY is covered by the CONTRACTOR's maintenance agreement. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE. CONTRACTOR DOES NOT REPRESENT OR WARRANT THAT THIS SOFTWARE WILL MEET ANY OR ALL OF CITY'S PARTICULAR REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE ERROR-FREE OR UNINTERRUPTED AND THAT ALL PROGRAM ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. NOR DOES CONTRACTOR MAKE ANY WARRANTIES REGARDING THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION CONTENT. 20. WARRANTY LIMITATIONS. CONTRACTOR'S ENTIRE LIABILITY AND RESPONSIBILITY FOR ANY AND ALL CLAIMS, DAMAGES OR LOSSES ARISING FROM USE OF THE SOFTWARE BY CITY SHALL BE ABSOLUTELY LIMITED TO THE AMOUNT (S) OF THE LICENSE FEE ACTUALLY PAID, EXCEPT AS PROVIDED IN SECTION 13. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN, CONTRACTOR SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR CONTINGENT DAMAGES OR EXPENSES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING IN ANY WAY OUT OF THIS AGREEMENT, THE SOFTWARE, OR CONTRACTOR'S PERFORMANCE OR LACK THEREOF UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LOSS OF REVENUE, PROFIT OR USE. 21. TERMINATION of AGREEMENT. Agreement 3 of 6 A. By CITY. CITY may, by written notice to CONTRACTOR, terminate this Agreement in whole or in part at any time, whether for CITY's convenience or because of the failure of CONTRACTOR to fulfill the obligations herein. Upon receipt of notice, CONTRACTOR shall immediately discontinue all services affected (unless the notice directs otherwise), and deliver to CITY all data, estimates, graphs, summaries, reports, and all other records, documents or papers as may have been accumulated or produced by CONTRACTOR in performing this Agreement, whether completed or in process. 1. For Convenience. CITY may terminate this Agreement upon thirty (30) days written notice. Following notice of such termination, CONTRACTOR shall promptly cease work and notify CITY as to the status of its performance. Notwithstanding any other payment provision of this Agreement, CITY shall pay CONTRACTOR for service performed, of those listed in Exhibit A, to the date of termination to include a prorated amount of compensation due hereunder less payments, if any, previously made. In no event shall CONTRACTOR be paid an amount in excess of the full price under this Agreement nor for profit on unperformed portions of service. CONTRACTOR shall furnish to CITY such financial information as in the judgment of CITY is necessary to determine the reasonable value of the services rendered by CONTRACTOR. The foregoing is cumulative and shall not affect any right or remedy which CITY may have in law or equity. 2. For Cause. Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY may, at CITY's sole option, terminate this Agreement upon thirty (30) days written notice. B. By CONTRACTOR. Should CITY fail to pay CONTRACTOR all or any part of the payment set forth in Exhibit B, CONTRACTOR may, at CONTRACTOR's option terminate this agreement if such failure is not remedied by CITY within thirty (30) days of written notice to CITY of such late payment. 1. For Cause. Should CITY default in the performance of this Agreement or materially breach any of its provisions, CONTRACTOR, at CONTRACTOR's sole option, may terminate this Agreement upon thirty (30) days written notice. 22. SECTION HEADINGS. The headings of the several sections, and any table of contents appended hereto, shall be solely for convenience of reference and shall not affect the meaning, construction or effect hereof. 23. SEVERABILITY. If anyone or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions hereof, and such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 24. REMEDIES NOT EXCLUSIVE. No remedy herein conferred upon or reserved to CITY or CONTRACTOR is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise. 25. NO WAIVER OF DEFAULT. No delay or omission of CITY or CONTRACTOR to exercise any right or power arising upon the occurrence of any event of default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy given by this Agreement to CITY or CONTRACTOR shall be exercised from time to time and as often as may be deemed expedient in the sole discretion of CITY or CONTRACTOR. 26. ENTIRE AGREEMENT AND REMEDY. In conjunction with the matters considered herein, this Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by any of the parties, either oral or written, of any character or nature hereafter binding except as set forth therein. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives their future right to claim, contest or assert that this Agreement was modified, canceled, superseded, or changed by any oral agreements, course of conduct, waiver or estoppels. Agreement 4016 27. SUCCESSORS AND ASSIGNS. All representations, covenants and warranties set forth in this Agreement, by or on behalf of, or for the benefit of any or all of the parties hereto, shall be binding upon and inure to the benefit of such party, its successors and assigns. 28. COMPLIANCE WITH LAW. CONTRACTOR shall, at his sole cost and expense, comply with all CITY, State and Federal ordinances and statutes now in force or which may hereafter be in force with regard to this Agreement. The judgment of any court of competent jurisdiction, or the admission of CONTRACTOR in any action or proceeding against CONTRACTOR, whether CITY be a party thereto or not, that CONTRACTOR has violated any such ordinance or statute, shall be conclusive of that fact as between CONTRACTOR and CITY. 29. STATE LAW. This Agreement shall be governed by the laws of the State of Washington. Any litigation regarding this Agreement or its contents shall be filed in Kitsap County, Washington, if in state court, or in the federal district court nearest to Kitsap County, if in federal court. 30. EXECUTION OF COUNTERPARTS. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the parties shall preserve undestroyed, shall together constitute one and the same instrument. 31. AUTHORITY. All parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement in the names, titles and capacities herein stated and on behalf of any entities, persons, or firms represented or purported to be represented by such entity (ies) person(s), or firm(s) and that all formal requirements necessary or required by any state and/or federal law in order to enter into this Agreement have been fully complied with. Furthermore, by entering into this Agreement, CONTRACTOR hereby warrants that it shall not have breached the terms or conditions of any other contract or agreement to which CONTRACTOR is obligated, which breach would have a material effect hereon. 32. PRECEDENCE. In the event of conflict between the provisions contained in the numbered sections of this Agreement and the provisions contained in the Exhibits, the provisions of the Exhibits shall prevail over those in the numbered sections. 33. TERM AND TERMINATION OF LICENSE. A. The License is effective until terminated. B. The initial term of Maintenance Period shall be for a period of one (1) year starting on the DAM ION software installation date and it shall be automatically renewed for successive one year terms as long as CITY remains licensed by CONTRACTOR to use the Software, unless earlier cancelled in writing by either party by written notice at least ninety (90) days prior to the next term. C. Either party has the right to terminate the License and Maintenance if the other party breaches or is in default of any obligation hereunder, including but not limited to CITY's failure to pay any amount when due, and if such default has not been cured within thirty (30) days of receipt of notice of such default. D. In the event that the License is terminated, CITY shall forthwith return to CONTRACTOR all copies of the Software, the Documentation and other materials provided to CITY pursuant to this Agreement, and will certify in writing to CONTRACTOR that all copies or partial copies of the Software, the Documentation and such other materials have been returned to CONTRACTOR or destroyed. 34. TRAVEL. Travel expenses incurred by CONTRACTOR will be reimbursed by the CITY, Travel expenses are defined as airplane, car, hotel, food, taxi, parking or any other reasonable and customary travel expense. Travel expenses are billed at the fixed price (see Exhibit B). 35. CHANGES. The scope and schedule of services and materials provided under this Agreement may be changed from time to time by mutual agreement of the CITY and CONTRACTOR as set out in a written Statement of Work Change Order. When a change causes a modification in total costs or the amount of time needed to complete such change, an equitable adjustment shall be made to the Payment Schedule and Project Plan, as applicable. Agreement 5 of 6 Agreement Exhibits. This Agreement includes the following exhibits incorporated herein by reference: Exhibit A. Exhibit B. Exhibit C. Exhibit D. Exhibit E-1. Exhibit E-2. Exhibit F-1. Exhibit F-2. Contractor's Statement of Work Payment Arrangements Standard Indemnification and Insurance Provisions License Agreement & Provisions Software Escrow Agreement Escrow Agreement Acceptance Maintenance Contractor's Maintenance Policy IN WITNESS WHEREOF, the parties have executed this Agreement to be effective on the date executed by CITY. By: Tille ~4-( JIt~d 16-1508247 Federal Tax 10 Number Dale ?;h~ By: Tille A$...I-: 65 Jd.I..V'~ Date: 6016 Exhibit A CONTRACTOR's STATEMENT OF WORK SECTION 1: Purpose Introduction The purpose of this document is to outline the essential steps required by CONTRACTOR and CITY to successfully implement the DAMION application system. This document describes the steps in the process, the purpose and the responsibilities of the CONTRACTOR and CITY for the primary implementation elements. Objective CONTRACTOR's objective is to provide the technical support and services, advice and training to ensure a successful installation and implementation of the DAM ION application system at the CITY's location. The end goal is for the CITY to be fully conversant with the application and capable of performing all system administration tasks including ad hoc report design, document template development, security support, system backup, and basic database administration. Ongoing technical support and assistance will of course be provided by CONTRACTOR as part of the annual maintenance agreement. SECTION 2: Deliverables DAMION Client/Server Systems The CONTRACTOR will deliver to the CITY the following DAM ION and database software items: 1. DAMION Criminal Module (Adult & Juvenile) for five (5) named users1 2. DAM ION Ad Hoc Report Module 3. DAM ION Legal Support Module 4. Oracle2 RDBMS for five (5) "Standard Edition One" Named User Licenses 5. Oracle Toolset (Runtime) 6. Installation and Training Services SECTION 3: Installation Process for Oracle and DAMION . GENERAL The following steps outline the installation process for DAMION. Once the pre-implementation planning process is complete, CONTRACTOR will provide a project plan/schedule and checklist for installation, for the CITY's approval, which shall not be unreasonably withheld. Installing Oracle Standard Edition (9i or higher) Oracle Standard Edition One will be installed by the CONTRACTOR's technician, and will be done in co-operation with technical staff from the CITY. Installing DAMION Once Oracle is installed on the database server, CONTRACTOR will create a training database. The DAMION client software will be installed and configured by the CONTRACTOR in co-operation with technical staff from the CITY on a predetermined set of personal computers for training purposes. This process will be performed by a CONTRACTOR technician who will at that time train the CITY's staff in this procedure. 1 The DAMION Prosecutor modules include User and System Administration Documentation provided in electronic format 2 The Oracle RDBMS is a limited runtime license, inexorably linked to the DAMION application, with use strictly limited to the DAMION application. Exhibit A - Statement of Work 1 of 11 The software will be loaded with minimal table values and two super-user accounts. CONTRACTOR's personnel and the CITY's System Administrator{s) will then use one super-user account to create all necessary offices, user identifications and user groups. In conjunction with the CITY's System Administrator(s), CONTRACTOR personnel will load client-specific codes and values into the system's maintenance tables. CITY's staff will load the remainder of the user workstations with the Oracle and DAMION software. Data Migration Process Data migration of the CITY's DAMION case information held in the Kitsap County DAM ION database shall be performed by the CONTRACTOR. The case information migration process for the CITY will be broken down in several steps that will allow the migration process to be monitored and performed accurately, and is described below. CONTRACTOR will perform this work with necessary assistance from CITY staff. . Obtain access to the Kitsap County DAM ION system - CONTRACTOR/CITY . Build scripts/routines to extract the CITY's cases from the Kitsap County's DAM ION system - CONTRACTOR/CITY . Build scripts/routines for loading the CITY's cases into the new CITY DAMION database - CONTRACTOR/CITY . Create and run data exception reports. CONTRACTOR . Review exception reports and provide CONTRACTOR feedback for data correction. CITY . Perform a test migration. CONTRACTOR . Review results of the migration - CONTRACTOR/CITY . Perform final review and confirm accuracy of migrated case data. CITY . Perform final data migration - CONTRACTOR Performance Test - CONTRACTOR/CITY The performance testing will be performed by the CONTRACTOR prior to the Go Live date. The performance testing will be performed within the CITY main network in a controlled environment to ensure that the CITY network does not interfere with the results of the test. Prior to performing the test, the CONTRACTOR will devise a formal test plan, to be approved in advance by CITY, so that typical system transactions and operations can be simulated in the production database. CITY will monitor and approve results of tests conducted prior to system acceptance. The following table presents typical performance indicators for the performance test: Sub 3 Seconds Sub 10 Seconds Sub 5 Seconds Within 2 Minutes Within 10 Minutes Within 10 Minutes Exhibit A - Statement of Work 2 of 11 I Complex Ad Hoc Report I Within 2 Hours Definitions Simple Querv A simple query is a query performed in a transaction screen for the purpose of modifying information, e.g., Case Worksheet. Complex Querv A complex query is a query performing a system wide type of search, e.g. General Person Lookup System. This type of query typically searches several tables in order to retrieve the information in several blocks of a screen. In other words, a complex query is a collection of several simple queries as described above. Save Transaction A save transaction is the process by which the database records and stores information changed by a user in a transaction screen, e.g., Agency Report Log. Simple Report A simple report is a report that lists information as stored in the database, e.g., Attorney Calendar Report. Complex Report A complex report is a report that performs a wide system search for the purpose of computing and presenting statistics, e.g., Crime Statistics - Year-to-Date. Simple Ad Hoc Report A simple Ad Hoc report is a report created by a user that will be using mostly indexed fields in the search criteria. Complex Ad Hoc Report A complex Ad Hoc report is a report that involves joining several tables, with complex selection criteria accessing non-indexed columns. An example of such a report could be, for a specified date range, the felony cases referred for prosecution, grouped by office, review prosecutor, sorted by crime type, where a case was created and the defendant has been found guilty, listing the DA Log No, date received, defendant name, defendant disposition, charge code, charge disposition, charge disposition date. Go Live - CONTRACTOR/CITY Initiate the live operation of the system following the conclusion of training and case data migration. Maintenance Table Building As part of the system installation, maintenance tables will need to be populated to reflect the exact requirements of CITY. CONTRACTOR will supply a list of all maintenance tables along with a sample of the default values that will be supplied with the system. A share of the maintenance tables will be populated by the CONTRACTOR as part of the data conversion process. For the codes that will not be populated by the data conversion, the CITY will be responsible for creating a document listing all additional relevant codes and their descriptions. This document will be used by the CITY to populate the appropriate DAM ION tables in the training environment. The task will be performed by the CITY's System Administrator(s) in the training environment, with assistance from the CONTRACTOR's staff to make code-related decisions. Exhibit A - Statement of Work 3 of 11 Once all codes are properly defined, the CONTRACTOR will copy the training database values to the CITY's production database. Further definition of maintenance tables by CITY will be required as subsequent modules are loaded for training and production. Staff Members and System Security The CITY will be responsible for assigning security privileges to all CITY Staff Members, including: . identifying all staff members . associating all staff members with a job description or organizational role . associating DAMION screen access (query/update) with job descriptions CONTRACTOR's Project Coordinator The CONTRACTOR's Project Coordinator for the CITY program will be responsible for planning, organizing and controlling the installation of the DAM ION application. Planning The CONTRACTOR's Project Coordinator will ensure that all aspects of the process are considered, prioritized and arranged, to provide a logical framework in which to perform the project. Organizing The CONTRACTOR's Project Coordinator will ensure that appropriate resources are available, at the time and manner required to carry out the plan. Reporting The CONTRACTOR's Project Coordinator will be required to provide periodic progress reports to CONTRACTOR and CITY on status of the project and identifying any variance from plan along with recommendations to correct or adjust. The frequency and format of progress reports will be determined and agreed upon by both the CITY and the CONTRACTOR. SECTION 4: Training Overview The training program provided to CITY will start with CONTRACTOR providing training to all users before the DAM ION system goes live. CONTRACTOR will ensure that a core group of users have sufficient knowledge to subsequently train new users for updates. CONTRACTOR warrants that all training shall be provided in a workmanlike and professional manner and personnel assigned to perform training shall be fully qualified, experienced, and proficient in both the use of the systems and teaching the skills described below. Training Curriculum CONTRACTOR will provide three levels of training to CITY. End User - Query Training: 1. Length 2. Audience 3. Prerequisites 4. Computer Skill Level 5. Curriculum One Y2 day session Individuals needing to query data with little data entry. Windows environment, Microsoft Office Low Basic Skills: . Navigation Exhibit A - Statement of Work 4 of 11 End User - Data Entry Training: 1. length 2. Audience 3. Prerequisites 4. Computer Skill level 5. Curriculum System Administration Training: 1. length 2. Audience 3. Prerequisites 4. Computer Skill level 5. Curriculum Transfer of Knowledge to CITY IT Staff: 1. Technical Discussion . Query . Basic data entry Two Y2 day sessions Individuals requiring general system knowledge. Microsoft Windows workstation environment, Microsoft Office, Intermediate Intermediate Skills: . Navigation . Query . Data Entry . legal Document Production . Generating Standard and Ad Hoc Reports Five full days System Administrators, Office Administrators and Clerical Supervisors Microsoft Windows workstation environment, Windows Server environment High System Administration Skills: . Adding and Maintaining Users . Maintaining Roles . Adding and Maintaining lists of values . Creating and Maintaining Document Templates & Ad Hoc Reports Backup & Recovery . CONTRACTOR to provide information and scripts as necessary so CITY technical staff can incorporate the backup of the DAMiaN system into the CITY's normal city-wide backup process and cycles. . Work with the CITY to ensure a process is established for the recovery of the DAMiaN system from the backup data. System Administrative and other core implementation group training are completed during the "Installing DAMiaN" step mentioned above. Costs for this training are included in the Installation Services deliverable. Maximum Class Size . System Administration . Query . Data Entry 5 8 8 Continuity of Classes To maintain continuity of study, classes made up of multiple sessions should not have more than one half day between each session. For example, a three session intermediate class could run: . Three mornings or afternoons in a row . Two mornings and one afternoon or vice versa. Exhibit A - Statement of Work 5 of 11 . Morning, afternoon, morning or vice versa Classes are progressive. Each class builds on information learned in previous classes. For example, Data Entry users should first take the Query Training Class. Training Schedule Breakdown To assist with the implementation of DAMION an implementation team made up of system administrators, supervisors, IT staff, etc. will be trained in advance of the general user population (System Administration Class). These individuals will be responsible for creating document templates, designing ad hoc reports, and installation and set-up of DAMION. Training will be provided on a mutually agreed schedule between CONTRACTOR and CITY. Services and Equipment The training environment will also provide the following services/equipment: Database Server: Availability of the database server intended for production, configured and loaded with the Oracle Server software in the training database. File and Printer Servers At each of the training locations, a file/printer server will be available to participants in the classroom environment, including a dedicated laser printer in the classroom. Assumptions and Prerequisites General User Prerequisites It is assumed that all attendees will have experience with a Windows PC environment and can perform the following functions. . Navigating Windows Environment (2000/XPlVista) - Mousing, windowing, using the desktop, Taskbar and Start button. . Managing Files and Folders - Moving, copying, deleting, viewing, creating and renaming files and folders. . Running Programs - Starting and exiting programs and managing program icons. . Keyboard Typing - Using the keyboard at a level that is consistent with the requirements of their position. System Administration Prerequisites The following courses are suggested but not required for DAM ION System Administrators. Windows 2003 or greater Operating System . Administering Microsoft Windows 2003 or greater . Supporting Microsoft Windows 2003 or greater Core Technologies Oracle Database (Optional) . Oracle Database Administration . Oracle Backup and Recovery Workshop . Introduction to Oracle: SQL and PUSQL SECTION 5: Summary Roles and Responsibilities Exhibit A - Statement of Work 6 of 11 Overview The purpose of this section is to provide an overview of the tasks that will be assigned in the Project Plan Gantt Chart to be created following the execution of this Agreement and as part of the project initiation process. CONTRACTOR Responsibilities Project Planning and Coordination . CONTRACTOR will prepare the detailed project plan with cooperation of the CITY. Pre.installation . CONTRACTOR will review and approve CITY's proposed hardware configuration. . CONTRACTOR will calculate preliminary total database size based on CITY provided transaction volumes. . CONTRACTOR will revise record count estimates. . CONTRACTOR will revise Production Database Size Estimate. . CONTRACTOR will install Oracle RDBMS. . CONTRACTOR will create training database instance. . CONTRACTOR will configure SOL'Net Configuration. . CONTRACTOR will create DAM ION objects and system setup code tables. . CONTRACTOR will adjust site-specific system tables and enroll users in training database. . CONTRACTOR will provide general and system administrator training. Pre-production . CONTRACTOR will assist CITY in creating and testing backup procedures. . CONTRACTOR will assist CITY in loading software on all users Workstations. Production Database Preparation . CONTRACTOR will finalize database sizing. . CONTRACTOR will create production database instance. . CONTRACTOR will create tables for DAMION applications. . CONTRACTOR will import system code tables from training database. . CONTRACTOR will assist CITY in creating user accounts. . CONTRACTOR will import security roles from training database. Post.Production . CONTRACTOR will provide CITY with onsite assistance during Go Live period. . CONTRACTOR will perform necessary post-production activities to ensure that system meets critical functional requirements of CITY. CITY Responsibilities Pre-installation . CITY will order hardware. . CITY will provide CONTRACTOR with the system structure for disk partitioning (CONTRACTOR shall provide requirements for disk partitioning on an Oracle system). . CITY will provide CONTRACTOR with Transaction Volumes (case load) · CITY will select ten document templates to be created during CITY training with CONTRACTOR assistance. . CITY will select and define customization of standard reports, if any. . CITY will define access security requirements. . CITY will assist CONTRACTOR in defining system availability requirements. . CITY will assist CONTRACTOR in defining Backup Strategy. . CITY will provide CONTRACTOR with basic network configuration details including hosts and TCP/IP addresses. Exhibit A - Statement of Work 7 of 11 . CITY will provide CONTRACTOR with high speed Internet access, as needed, for remote sURPort and maintenance; alternatively, CITY will provide dialup RAS access in case of Internet unavailability. Pre-production . CITY will create remaining high priority Document Templates before production date. The balance can be created as needed. . CITY will create other high priority ad hoc reports prior to production. The remaining reports can be created as needed. . CITY will verify all workstations are working at CONTRACTOR approved operating software versions and levels and that the workstation hardware configurations meet CONTRACTOR's minimum requirements. . CITY will verify workstations are loaded and operating with Microsoft Office 97 SR 2 or better or WordPerfect 9 or better. . CITY will add to the basic code tables provided by the CONTRACTOR. Post-Production . CITY will perform an "image" backup of the operating system following any upgrade to the Windows Server operating system. SECTION 6: Environment and Configuration Hardware and Network Environment Database Server Hardware CONTRACTOR reviewed the Server configuration described below. This configuration or an equivalent from another vendor or an equivalent virtual server I SAN environment will provide the desired level of performance and growth for the CITY and will meet performance criteria described in Performance Test section above. The performance criteria described in the Performance Test section is also based on the Load Requirements described as follows. Model HP Proliant ML 150 G5 Processors 1 Intel Xeon 2.33 GHz Memory (RAM) 2GB Disk Controller RAID Controller Tape Backup DAT 160 Operating System MS Windows 2003 Standard Edition or MS Windows 2008 Load Requirements The system storage requirements for the anticipated system loads are described below. System Files 5 Database Files (Data) Database Files (Index) 2 1.5 Database Files (Journal) 4 Exhibit A - Statement of Work 8 of 11 Archive Files 2 Training Database 3 Total 17.5 The above table does not include the operating system disk requirements, and additional RAID-X storage requirements. The following table represents a summary of the memory load requirements for Oracle. Operating System 256 Training Environment RDBMS 64 SGA 20 DB Buffers 40 Users 6 Production Environment RDBMS 128 SGA 80 DB Buffers 200 Users 8 Total 802 File Server Storage (estimate) Main office 325,000 10 Totals 325,000 10 Client Workstation Hardware CPU Pentium @ 1 Ghz Pentium 4 @ 2GHz Memory 256 MB 512 MB Hard Drive (free) 300 MB 300 MB Network Protocol TCP/lP TCP/lP 800 x 600 pixels 1024 x 768 pixels Video 32K colors 32K colors Operating System Windows 2000/XP Windows 2000/XP Exhibit A - Statement of Work 9 of 11 Word Processor Corel WordPeriect or MS Word Corel WordPeriect or MS Word Calendar/Email GroupWise, MS Outlook, or Lotus GroupWise, MS Outlook, or Lotus Notes Mail Notes Mail SECTION 7: PROJECT SCHEDULE A Project Plan/Schedule in Gantt chart form will be created following the execution of this Agreement reflecting a project kick-off date and a project go-live date, Exhibit A - Statement of Work 10 of 11 Exhibit B PAYMENT ARRANGEMENTS Periodic Compensation at Selected Milestones A. For CONTRACTOR services to be rendered under this contract, CONTRACTOR shall be paid a total first year contract amount, including cost reimbursements, not to exceed $24,830, unless the data conversion option is exercised by the CITY. B. Payment for services and / or reimbursement of costs shall be made upon CONTRACTOR's satisfactory performance, based upon the scope and methodology contained in Exhibit A. C. 1lQQjLdelivery to CITY of item(s) specified below, CONTRACTOR shall submit to the CITY Designated representative an invoice for the service performed in accomplishing each milestone. These invoices must cite the assigned Contract or Purchase Order Number. CITY Representative shall evaluate the quality of the service performed and / or item(s) delivered and if found to be satisfactory shall initiate payment processing. CITY shall pay invoices or claims for satisfactory work within 30 days of presentation. (Est.) Percentage of Invoice Milestone Description Total Contract Amount Completion of Software Installation 30% $7,449.00 Completion of System Administration Training and Migration of DAM ION 30% $7,449.00 Case Data (cases from Kitsap County to CITY) Completion of End User Training and Go-Live 30% $7,449,00 Final Payment after 30 days of operating in live production environment 10% $2,483.00 Total (incorporates not to exceed $2,500 travel expenses in the aggregate) $24,830.00 D. CITY's failure to discover or object to any unsatisfactory work or billings prior to payment will not constitute a waiver of CITY's right to require CONTRACTOR to correct such work or billing or seek any other legal remedy. E. The CONTRACTOR will deliver to the CITY the following software items and service deliverables: 1. DAMION Criminal Module (Adult & Juvenile) for five (5) named users1 2. DAMION Ad Hoc Report Module 3. DAM ION Legal Support Module 4. Oracle2 RDBMS for five (5) "Standard Edition One" Named User Licenses 5. Oracle Toolset (Runtime) 6. Installation and Training Services F. The first year Annual Silver Maintenance Fee for DAM ION shall be $1,600 and be due one year from the date of the DAMION software installation. Thereafter annual changes, if any, in the maintenance fees will not exceed a percentage change equivalent to the annual rate of the change in the consumer price index (U.S. Bureau of Labor Statistics, CPI). G. The first year Annual Maintenance Fee for Oracle will be $180. Second and subsequent years of Maintenance Fees for the Oracle RDBMS will be calculated using the formula of the ORACLE Maintenance Fee percentage multiplied by the then current Oracle License Fee. 1 The DAMION Prosecutor modules include User and System Administration Documentation provided in electronic format 2 The Oracle RDBMS is a limited runtime license, inexorably linked to the DAMION application, with use strictly limited to the DAM ION application, Exhibit B - Payment Arrangements 1 of 3 H. Overdue payments shall bear interest at the rate of 15% per annum on the amount outstanding from the date when payment is due until the date payment in full is received by CONTRACTOR. I. All Maintenance Fees shall be paid within thirty (30) days of invoice at the beginning of the maintenance period. J. In addition to the fees payable by the CITY to the CONTRACTOR, all taxes and other levies, including sales and use taxes (but excluding taxes based on the net income of CONTRACTOR resulting from this Agreement) shall be the responsibility of the CITY. K. The CONTRACTOR will maintain the DAM ION software in Escrow for the CITY, as described in Exhibit E-1. The CONTRACTOR agrees to pay all fees associated with the Escrow of the DAMION software. L. A Constellation "Price Schedule" is included on the following pages of this Exhibit B. The software and services noted as options in the "Price Schedule" may be exercised and purchased by CITY at the prices noted for up to a period of 24 months from the Agreement execution date. If/when an option is exercised by the CITY, all work to be performed by CONTRACTOR will be defined under the existing Statement of Work, Exhibit A, or included in a Scope of Work for CITY within an Amendment to this Agreement. Exhibit B - Payment Arrangements 2 of 3 Bremerton City Attorney's Office, WA CourtView Justice Solutions- DAMION Prosecutor Suite Pricing Schedule June3,2009 Software or Service Description List Price Discount Net Price 1 I Software . I DAMiaN Criminal Criminal Module (Adult & Juvenile) $8,000 $4,000 $4,000 5 Named User Seats, includes: DAMiaN Legal Support Module DAMiaN Ad Hoc Report Writer Oracle RDBMS Oracle Standard Edition One Licenses 5 User Seats $900 N/A $900 Software Subtotal $8,900 $4,000 $4,900 IAilnual Maintenance. I DAMiaN Maintenance Annual Maintenance for all above DAMiaN Software $1,600 N/A $1,600 Oracle Maintenance Annual Maintenance for Oracle Std. Edition One $180 N/A $180 Annual Maintenance Subtotal $1,780 $0 $1,780 I Services 2 .. I Professional Services Installation (2 Days) $1,500 N/A $1,500 Education Services System Administrator Training (5 Days On-Site) $6,250 N/A $6,250 Education Services End User Training (4 Days On-Site) $5,000 N/A $5,000 3 Days of End User Training 1 Day of On-Site Go Live Support Conversion Services 6 Data Conversion Services for Person/Case Data $4,500 N/A $4,500 Travel Expenses Fixed Travel/Per Diem Expenses $2,500 N/A $2,500 Services Subtotal $19,750 $0 $19,750 ITotals> . .<>1 TotallniUal Price 3 $28,830 $4,000 $24,830 IOPTIONS . .<1 I Electronic Discovery 4 I DAM ION Discovery Discovery Software Module $6,000 $3,000 $3,000 Adobe Software 5 Qty 2 Adobe Professional Edition v9.0 (needed for Discovery) $900 N/A $900 Discovery Maintenance Discovery Annual Maintenance $1,200 N/A $1,200 Professional Services Discovery SW Installation Services (1 Day, Remote) $1,000 N/A $1,000 Education Services End User Training (2 Days On Site, including Go Live) $2,500 N/A $2,500 Travel Expenses 2 Fixed Travel/Per Diem Expenses $1,500 N/A $1,500 Total Initial Price. Discovery Module Option 3 $11,900 $3,000 $8,900 I Civil Software 7 I DAMiaN Civil Civil Software Module $6,000 $3,000 $3,000 Includes Asset Forfeiture, General Litigation, Etc. Civil Maintenance CIvil Annual Maintenance $1,200 N/A $1,200 Professional Services Civil Installation Services (1 Day, Remote) $1,000 N/A $1,000 Education Services System Administration Training (2 Days, On Site) $2,500 N/A $2,500 Education Services End User Training (2 Days On Site, including Go Live) $2,500 N/A $2,500 Travel Expenses 2 Fixed Travel/Per Diem Expenses $3,000 N/A $3,000 Total Initial Price. Civil Module Option 3 $15,000 $3,000 $12,000 Exhibit B - Payment Arrangements 3 of 3 Exhibit C STANDARD INDEMNIFICATION AND INSURANCE PROVISIONS INDEMNIFICATION CONTRACTOR shall defend, indemnify and save harmless the CITY, its officers, agents and employees from any and all claims, demands, damages, costs, expenses, judgments or liabilities arising out of this Agreement or occasioned by the performance or attempted performance of the provisions hereof; including, but not limited to, any act or omission to act on the part of the CONTRACTOR or his agents or employees or other independent contractors directly responsible to him; except those claims, demands, damages, costs, expenses, judgments or liabilities to the extent resulting from the negligence or willful misconduct of the CITY. With respect to any and all claims, demands, damages, costs, expenses, judgments or liabilities arising from the joint or concurrent negligence of CONTRACTOR and the CITY, each party shall assume responsibility in proportion to the degree or its respective fault as determined by a court of competent jurisdiction. CONTRACTOR's obligation to indemnify CITY is contingent upon the CITY giving prompt notice to CONTRACTOR of any claims, permitting CONTRACTOR to defend, compromise, or settle any claim, and cooperating with the defense of any such claim. CONTRACTOR shall notify the CITY immediately in the event of any accident or injury arising out or in connection with this Agreement. INSURANCE Without limiting the CONTRACTOR'S indemnification of the CITY, CONTRACTOR shall procure the following required insurance coverages at its sole cost and expense. All insurance coverages are to be placed with insurers which (1) have a Best's rating of no less than A-: VIII, and (2) are admitted insurance companies in the State of Washington. All other insurers require the prior approval of the CITY. Such insurance coverage shall be maintained during the term of this Agreement. Failure to comply with the insurance requirements shall place CONTRACTOR in default. Upon request by the CITY, CONTRACTOR shall provide a certified copy and endorsement of any insurance policy to the CITY within ten (10) working days. 1. Workers' Compensation Insurance. Statutory Workers' Compensation and Employers Liability Insurance shall cover all CONTRACTOR's staff while performing any work incidental to the performance of this Agreement. The policy shall provide that no cancellation, major change in coverage, or expiration shall be effective or occur until at least thirty (30) days after receipt of such notice by the CITY. In the event CONTRACTOR is self-insured; it shall furnish a copy of Certificate of Consent to Self-insure issued by the Washington State Department of Labor & Industries. This provision does not apply if CONTRACTOR has no employees as defined under Washington law during the entire period of this Agreement and CONTRACTOR submits a written statement to the CITY stating that fact. 2. General and Automobile Liability Insurance. The general liability insurance shall include personal injury liability coverage, shall afford coverage for all premises and operations of CONTRACTOR and shall include contractual liability coverage for this Agreement between CITY and CONTRACTOR. The automobile liability insurance shall cover all owned, non-owned and hired motor vehicles, which are operated on behalf of CONTRACTOR pursuant to CONTRACTOR's activities hereunder. CITY, its officers, employees, and agents shall be named as Additional Insureds on any policy. The limit of liability of said policy or policies for general and automobile liability insurance shall not be less than $1,000,000 per occurrence combined single limit for bodily injury and property damage. Personal injury liability coverage shall also be in the amount of not less than $1,000,000 per occurrence and $2,000,000 aggregate. Said policy or policies shall include a severability of interest or cross liability clause or equivalent wording. Said policy or policies shall contain a provision of the following form: "Such insurance as is afforded by this policy shall be primary and contributory to the full limits stated in the declarations, and if the CITY has other valid and collectible insurance for a loss covered by this policy, that other insurance shall be excess only." Said policy or policies shall provide that the CITY shall be given thirty (30) days written notice prior to cancellation or expiration of the policy or reduction in coverage. CONTRACTOR shall submit to the office of the designated CITY representative certificate(s) of insurance documenting the required insurance as specified above prior to this Agreement becoming effective. Current certificate(s) of insurance shall be maintained at all times in the office of the designated CITY representative as a condition precedent to any payment by CITY under this Agreement. The approval of insurance shall neither relieve nor decrease the liability of the CONTRACTOR. Exhibit C -Indemnification and Insurance 1 of 1 Exhibit 0 LICENSE AGREEMENT & PROVISIONS LICENSE CONTRACTOR hereby grants to CITY a perpetual, non-transferable and non-exclusive license (the "License") restricted to CITY's place of business referred to in the Agreement and CITY's own operations: 1. To use one production copy of the object code version of the Software listed on Exhibit S, in the form supplied by CONTRACTOR, and as later updated by CONTRACTOR, on hardware/operating system configuration approved by CONTRACTOR and owned, leased or otherwise controlled by CITY; and 2. To use documentation pertaining to the Software as supplied by CONTRACTOR (the "Documentation") but only as required to exercise the License. CITY may make one back-up copy of the Software, provided that the copy contains all of the original copyright notices and other legends. CITY may use the production copy of the Software solely to process CITY's own data, and the software may not be used on a service bureau or similar basis to process data of others. If the operating system configuration changes, CITY must notify CONTRACTOR in advance, as an adjustment of License Fee may be required. Other than the rights of use expressly conferred upon CITY by this paragraph and by the Software Escrow Agreement herein, CITY shall have no further rights to use the Software or the Documentation, and shall not copy, reproduce, modify, adapt, sublicense or translate them, without the express prior written authority of CONTRACTOR. Exhibit 0 - License Provisions 1 of 1 Exhibit E-1 SOFTWARE ESCROW AGREEMENT This Agreement is made this 10th day of January, 199~, by and between Constellation Justice Systems ("Company"). and Bovlan Brown Code Fowler Vigdor & Wilson LLP ("Escrow Agent"). WHEREAS, Company has developed certain proprietary computer software programs and supporting documentation (hereinafter referred to as "Software"); and WHEREAS, Company licenses the use of the Software to third parties (referred to herein as "Licensees"); and WHEREAS, Escrow Agent has agreed to maintain the Software in escrow and to provide access to the Software by Licensees, as set forth herein; NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and other good and valuable consideration had and received by each of the parties hereto, the parties agree as follows: 1. Definitions. a) Demand Notice. The term "Demand Notice" shall refer to a written notice issued by a Licensee to Escrow Agent which sets forth at a minimum, the following: (i) a label that it is a "Demand Notice," (ii) identification of this Agreement, (iii) the License Agreement under which any Software is licensed to the Licensee and the specific Software to which it pertains, with reasonable particularity, (iv) establishment of an Event of Default, and (v) a demand for the delivery of a copy of the Source Code to the Software. b) Event of Default. The term "Event of Default" shall mean the occurrence of any of the following events or any events listed as an Event of Default in the License Agreement between Company and the Licensee requiring release of the Source Code: (i) if Company has availed itself of, or been subjected to by any third party, a proceeding in bankruptcy (other than Chapter XI or arrangement proceedings) in which Company is the named debtor, an assignment by Company for the benefit of its creditors, the appointment of a receiver for Company, or any other proceeding involving insolvency or the protection of, or from, creditors, and same has not been discharged or terminated without any prejudice to Licensee's rights or interests under the License Agreement within 120 days; or (ii) if Company has ceased its ongoing business operations, or the sale, licensing, maintenance or other support of the Software causing a material breach of the License Agreement which is not remedied in accordance with the License Agreement. c) Software. The term "Software" shall mean that software licensed, from time to time, by Company to a Licensee. The Software licensed by Company covered by this Escrow Agreement will be shown on each Licensee Acceptance, which shall be amended from time to time as additional software is licensed by Company to Licensees and deposited with Escrow Agent; d) Source Code. The term "Source Code" shall mean the Software in human readable form and technical documentation necessary to (i) produce the machine executable form of the Software, and (ii) maintain, modify or correct the Software. e) Termination Notice. The term "Termination Notice" shall refer to a written notice issued by Company to Escrow Agent which sets forth, at a minimum, the following: (i) a label that indicates that the notice is a "Termination Notice," (ii) identification of this Agreement and the Licensed Software with sufficient particularity; and (iii) a demand for the delivery of the Source Code after expiration of the period as set forth in section 5(a). Exhibit E-1 - Software Escrow Agreement 1 of 5 2. Deposit of Software. Company agrees to deposit with Escrow Agent two (2) complete copies of the Source Code within thirty (30) days after execution of this Agreement and within thirty (30) days after any new licensee Acceptance is provided to the Escrow Agent adding additional items of Source Code, including revisions and maintenance as described in Section 3. 3. Revisions and Maintenance. a) Company agrees to deposit with Escrow Agent one new copy of Source Code of each major revision of the Software within thirty days after such revision is made generally available to licensees. b) Upon receipt of the first revision, Escrow Agent agrees to return to Company one set of the original deposit of Software being revised. c) Upon receipt of all subsequent revisions, Escrow Agent agrees to return to Company the oldest version of the Software being revised, always maintaining in escrow one copy of each of the two latest versions of the Software. d) Company shall send all Source Code via U.S. mail return receipt requested, or via a receipted messenger service or overnight delivery service. 4. Storaoe and Security. a) Escrow Agent shall keep the Source Code in locked location at Escrow Agent's principal office at 2400 Chase Square, Rochester, New York 14604, or at such other place as Company and Escrow Agent shall mutually designate. b) The Source Code deposited with Escrow Agent pursuant to this Escrow Agreement shall remain the exclusive property of Company. Upon termination of this Escrow Agreement, Escrow Agent shall return the Source Code and related documentation to Company. c) Except as provided in this Escrow Agreement, Escrow Agent agrees that: i) it shall not divulge, disclose, or otherwise make the Source Code available to any parties other than Company, or make any use whatsoever of the Source Code; ii) it shall not permit any party access to the Source Code, except as may be necessary for Escrow Agent's authorized representatives to perform its functions under this Escrow Agreement, or as provided by the terms of this Agreement, or as otherwise directed by a final order from a court of competent jurisdiction; and iii) access to the Software on behalf of Company shall be granted by Escrow Agent only to those persons duly authorized in writing by a competent officer of Company. 5. Termination. a) Company may terminate this Escrow Agreement upon sixty (60) days prior written notice to Escrow Agent. b) Escrow Agent may resign as escrow agent upon sixty (60) day's prior written notice to Company. Upon resignation, if Escrow Agent has not previously released the Source Code deposited with Escrow Agent, it shall return Source Code to the new escrow agent, or if none, to the Company, after having received payment for its fees and costs pursuant to section 13 of this Escrow Agreement. c) Prior to termination of this Escrow Agreement, Company shall promptly notify all Licensees of the effective termination date of this Escrow Agreement, and the name of the new escrow agent, if any. Exhibit E-1 - Software Escrow Agreement 2 of 5 6. Licensees. Company shall notify Escrow Agent of each Licensee who becomes entitled to the benefits of this Escrow Agreement and shall provide Escrow Agent with a copy of the License Agreement under which Licensee may become entitled to receive a copy of the Source Code, and an executed original of the Licensee Acceptance in the form set forth in Exhibit E-2. No Licensee shall become entitled to the benefits of this Escrow Agreement until it has executed a Licensee Acceptance, which has been delivered to Escrow Agent. 7. Release of Source Code for Event of Default. Escrow Agent shall release a copy of the Source Code to the Software licensed to a Licensee to such Licensee upon the occurrence of an Event of Default, in accordance with the following procedure: a) Upon receipt of a Demand Notice from a Licensee, Escrow Agent shall send Company a copy of such Demand Notice. b) Company may dispute such Demand Notice by providing Escrow Agent, within thirty days of receipt of the Demand Notice, a notarized affidavit stating that no Event of Default has occurred. c) In the event, no affidavit is received in accordance with section 7(b) above; Escrow Agent shall release one copy of the Source Code to the Software to such Licensee. In the event such affidavit is received; the Demand Notice shall be null and void. d) Responsibility for and the expense of copying the Source Code shall be borne by the Licensee receiving it. Escrow Agent shall cooperate with such Licensee in making such a copy at the Licensee's expense, but Escrow Agent shall neither (i) be responsible for making such a copy, nor (ii) deliver the original of such copy to the Licensee. 8. Release of Source Code for Event of Termination. Escrow Agent shall release the Source Code to Company upon the occurrence of an Event of Termination in accordance with the following procedure: a) Upon receipt of a Termination Notice from Company, Escrow Agent shall send each Licensee a copy of such Termination Notice. b) Any Licensee may dispute such Termination Notice by providing Escrow Agent, within thirty days of receipt of the Termination Notice, a notarized affidavit stating no Event of Termination has occurred. c) In the event, no affidavit is received in accordance with section 8(b) above; Escrow Agent shall release the Source Code to Company. In the event such an affidavit is received; the Termination Notice shall be null and void. 9. Retention of Source Code. In the event Escrow Agent shall receive an affidavit from Company in accordance with Section 7 or from a Licensee in accordance with Section 8, Escrow Agent shall not release the Source Code, but shall retain the Source Code on the terms and conditions contained in this Agreement until it has received either: a) A written notice signed by an officer of Company and of the Licensee which gave such notice or affidavit, as the case may be, directing it to release the Source Code; or b) The final determination of a court of competent jurisdiction directing it to release the Source Code. After receipt of a notice as described in Section 9(a) or a judicial determination as .described in Section 9(b), Escrow Agent shall release the Source Code in accordance with the instructions contained therein. 10. Interpleader. In the event that either Company or any Licensee commences an action in a court of law to compel delivery of the Source Code, the Escrow Agent is authorized, but not required, to interplead the Source Code into the registry of the court and stand fully discharged from further responsibilities under this Escrow Agreement. Exhibit E-1 - Software Escrow Agreement 3 of 5 11. Exculpation. a) The Escrow Agent shall not be obligated or required to examine or inspect the Source Code or to determine whether the Source Code deposited with Escrow Agent by Company consists of those items which Company is obligated to deliver. Escrow Agent shall bear no responsibility whatsoever to determine the existence, relevance, completeness, currency, or accuracy of the Source Code. b) The Escrow Agent shall not be responsible for any Source Code which is not clearly identified as such when delivered to the Escrow Agent or which is not delivered to the Escrow Agent in accordance with this Agreement. c) The Escrow Agent shall not be obligated or required to inquire as to the accuracy or truth of any statements made in a Demand Notice, Termination Notice, or any affidavits issued in response to such Notices. 12. Indemnification. Escrow Agent shall not, by reason of its execution of this Agreement, assume any responsibility or liability for any transaction between Company and Licensees, other than the performance of its obligations as Escrow Agent hereunder. Company hereby agrees to indemnify Escrow Agent, and to hold it harmless against any loss, liability or expense incurred, including attorney's fees, arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder, except to the extent caused directly by negligence or bad faith on the part of the Escrow Agent. 13. Fees and Expenses. Company shall pay Escrow Agent fees. Company shall also reimburse Escrow Agent for all of its expenses incurred in carrying out its obligations under this Escrow Agreement. 14. Good Faith Reliance. Escrow Agent may act in good faith reliance upon any instruction, instrument, or signature believed in good faith to be genuine, and may assume that any person purported to give any writing, notice, or instruction in connection with or relating to this Escrow Agreement has been duly authorized to do so. 15. Dispute. Any dispute between the parties concerning the interpretation, construction, validity, scope, performance under, or any other matter pertaining to this Escrow Agreement, shall be submitted to arbitration by the American Arbitration Association, according to its rules and regulations then in effect, to be held in Rochester, New York, and the ruling of the arbitrator shall be final and binding upon the parties and enforceable in any court of competent jurisdiction. 16. Entire Aareement. This Escrow Agreement, including the Exhibits hereto, constitutes the entire Agreement between the parties, and shall supersede all previous communications, representations, understandings and agreements, either oral or written between the parties with respect to the subject matter hereof. 17. Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if sent by registered mail, return receipt requested, or by recognized overnight carrier, to the following addresses, or such other address as requested by the respective parties: In the case of the Company: Constellation Justice Systems Attention: Andrew Smith 6780 Pittsford-Palmyra Road Fairport, New York 14580 In the case of the Escrow Agent: Boylan, Brown, Code, Fowler, Vigdor & Wilson LLP 2400 Chase Square Rochester, New York 14604 Attention: Susan Laluk 18. GoverninQ Law. This Escrow Agreement shall be governed by and construed according to the laws of the State of New York. Exhibit E-1 - Software Escrow Agreement 4 of 5 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement to be effective as of the date first above written. Constellation Justice Systems ~ By: Andrew Smith, VP ESCROW AGENT ~J.~ By: Susan S. Laluk, Partner Exhibit E-1 - Software Escrow Agreement 5 of 5 Exhibit E-2 ESCROW AGREEMENT ACCEPTANCE The undersigned ("Licensee") acknowledges receipt of a copy of, and agrees to be bound by all applicable terms of, a Software Escrow Agreement (the "Escrow Agreement") dated as of 1998 by and between Company and Escrow Agent. Licensee hereby agrees to indemnify Escrow Agent for, and to hold it harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the Escrow Agent, arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder. Exhibit D of this Agreement constitutes a duly executed License Agreement by and between Company and Licensee. The Software licensed under the License Agreement, which is covered by the Software Escrow Agreement, is listed in paragraph E of Exhibit B. Licensee agrees that any Source Code released pursuant to the Escrow Agreement shall remain the exclusive property of Company, and the undersigned shall hold the Source Code in the strictest confidence and use it solely to maintain and support the Software internally during the term of the License Agreement. Any notices to the Licensee with respect to the Escrow Agreement may be sent to the address shown below. LICENSEE: CITY OF BREMERTON II Name: ~eN -:gA~Weu- Address: ?,''is" '- ~ Slvc.cr J C:;..,",-tc" <-00 ~~oo..AJ'->~ <i~g7 Exhibit E.2 - Escrow Agreement Acceptance 1 of 1 Exhibit F-1 MAINTENANCE MAINTENANCE. In consideration of payments to be made by CITY to CONTRACTOR as set out in Exhibit S, CONTRACTOR agrees to provide the following Silver Service Level software maintenance services during the periods covered by the maintenance fees: 1. CONTRACTOR will maintain the System Software so that it operates in conformity in all material respects with the descriptions and specification for the Software set forth in the Documentation. 2. In the event that CITY notifies CONTRACTOR of any errors or defects in the Software, CONTRACTOR will provide support, as described in the CONTRACTOR's Maintenance Policy in Exhibit F-2, in the form of assistance and advice on the use and maintenance of the Software. 3. CONTRACTOR will send CITY Updates in electronic form and notices of Upgrades of the Software to the CITY's address specified in this contract. Updates are those improvements and/or modifications to the Software that CONTRACTOR generally makes available as part of the annual maintenance program. CONTRACTOR will establish and facilitate a User's Group to develop and prioritize requests for system enhancements to address requirements and improve system functionality for inclusion in each annual update. An Upgrade is any product release, including added functionality, or major enhancement of the Software, that CONTRACTOR markets and licenses for additional fees separately from Updates. 4. CONTRACTOR shall provide CITY with Updates of the Software in a timely manner at no additional charge. The CONTRACTOR shall waive and exempt the CITY from services for the CITY's first software Update. CITY shall be entitled to acquire a license to Upgrades at CONTRACTOR's then prevailing license fees. Software Updates and Upgrades will be sent in electronic form with explanations, instructions, and updated documentation where appropriate. 5. CONTRACTOR will provide CITY with copies of standard reports developed for other CONTRACTOR customers. Upon request, CONTRACTOR will provide estimated cost to tailor reports for installation at CITY, and if interested, CITY may purchase tailored reports. Maintenance services shall not include, and CITY shall pay extra for, any and all consulting, implementation, installation, customization, education and training related services, subject to the availability of CONTRACTOR's staff. Maintenance service shall not include, and CITY shall pay extra for (subject to CONTRACTOR's staff schedules): service to products not listed on Exhibit S; maintenance of software that has been modified or repaired by someone other than CONTRACTOR; modification or repair of damage caused by failure to continually provide a suitable operating environment for the software, including damage caused by accident, disaster, neglect or misuse; or modification or repair of damage caused by the use of the software for other than the purposes for which licensed. CITY shall, at CONTRACTOR's request, provide CONTRACTOR with temporary high speed Internet access to CITY's computers on which the Software is installed in an as-needed-basis, so as to enable CONTRACTOR to monitor the operation of the Software or assist CITY staff with resolution of any submitted service call. The CITY reserves the right to activate CONTRACTOR access as needed and to de-activate CONTRACTOR access when the need has expired. Exhibit F-1 - Maintenance 1 of 1 Exhibit F-2 CONTRACTOR's Maintenance Policy CONTRACTOR Maintenance Program Details CONTRACTOR offers three levels of service, DAM ION Silver, Gold and Platinum. DAM ION Silver is the standard level of support that has been offered to and accepted by the CITY as described below. Problem Assistance Reports Problem Assistance Reports or PARs is the term applied to calls from the CITY that are logged into the DAMION Problem Database. PARs are classified by severity level and are independent of the computing environment and the DAMION product in use. CONTRACTOR will work closely with the CITY to assign mutually agreed upon severity levels that meet the definitions of the severity level. CONTRACTOR will provide an initial response to the CITY on the problem within in an established period of time for the assigned severity level. PARs will remain open until no further action is required. This means that a mutually acceptable solution (fix or workaround) has been provided, or that a solution has been provided by the CONTRACTOR and the CONTRACTOR has not received a call back from the customer in more than 14 days. PARs are assigned the status of Inactive when the technical issue has been resolved but the CITY wishes to verify the fix before closing the PAR. Customer Support Procedures A CONTRACTOR's Technical Support Analyst will answer the CITY's calls and will log them into the PAR system. When a call is logged, the PAR system automatically generates a PAR number. When calling Customer Support, the CITY is asked to note the number for future reference. The Technical Support Analyst will attempt to determine whether the problem in question is caused by a product defect (bug) or by some other factor, such as documentation, education or computing environment. During the course of researching the problem, the Technical Support Analyst will review other PARs in the system to determine if a similar problem has been previously reported. If there is information on possible solutions, the information is faxed or emailed to the CITY. A Technical Support Analyst will attempt to reproduce and correct the problem on the current release of the product. If the problem is complex, the CITY may be asked to provide a discrete reproducible test case to help isolate and solve the problem. If the Technical Analyst can reproduce the problem on the most current release, the appropriate development team will be notified. Fixes or workarounds to PARs will be provided based on the assigned Severity Level. If the Technical Support Analyst cannot reproduce the problem on the product's most current release, the CITY may then be advised to upgrade to the current release. Exhibit F-2 - Maintenance Policy 1 of 4 Severity Level Definitions Severity Level 1 The problem causes complete loss of service and work cannot reasonably continue. The problem or defect has one or more of the following characteristics: . Data corruption . Critical functionality is not available . System hangs . System crashes repeatedly CONTRACTOR will provide an initial response to Level 1 PARs within four (4) hours during the support period (24x5), and will thereafter work continuously on the PAR until the issue is resolved (fix or workaround). To ensure that progress can continue at a steady pace, the CITY must provide CONTRACTOR with a contact either on-site or by pager to assist with data gathering, testing and applying fixes during the support period. Severity Level 2 A Severity Level 2 is a problem or product defect that causes an internal (software) error, or incorrect behavior loss of service. No CITY acceptable workaround is available, however operations can continue in a restricted fashion. The problem or defect has one or more of the following characteristics: . Internal software error causing the system to fail, but restart or recovery is possible . Severely degraded performance due to software error . Some important functionality is unavailable, yet the system can continue to function in a restricted fashion CONTRACTOR will provide initial response to Level 2 PARs within 24 hours during the support period (24x5), and the PAR will be worked on during normal working days (Monday through Friday) and normal working hours (6 AM Eastern Time to 6 PM Pacific Time). CONTRACTOR will include a fix to the problem in its next Product Update and where possible will provide a patch to the CITY. Severity Level 3 A Severity Level 3 is a problem or product defect which causes minimal loss of service. The impact of the problem or defect is minor or an inconvenience, such as a manual bypass to restore product functionality. The problem or defect has one or more of the following characteristics: . Software error for which there is a CITY acceptable workaround · Minimal degraded performance due to software error . Software error or incorrect behavior has minor impact on system operation . Software error requires manual editing of configuration or script files to work around a problem CONTRACTOR will provide initial response to Level 3 PARs within five (5) working days (Monday through Friday). CONTRACTOR will include a fix to the problem in its next Product Upgrade. Severity Level 4 A Severity Level 4 is a minor error, incorrect behavior, or a documentation error that in no way impedes the operation of a system. · Error causes no loss of service or impedes system operation . Error can be corrected through a change in system documentation Exhibit F-2 - Maintenance Policy 2 of 4 CONTRACTOR will make every effort to correct the problem in the next Product Update or revision to its documentation. If a product update or upgrade results in the reappearance of a Severity Level 1 or 2 problem or defect, CONTRACTOR shall work continuously on the PAR until the issue is resolved. . Escalation Procedures If at any time the CITY believes that CONTRACTOR is not providing sufficient service on a PAR, the problem can be expedited by asking to speak with the Customer Service manager. The Customer Service manager will return the call within two hours during the support period (24x5) to discuss the situation. If the Customer Service manager cannot resolve the issue, the CITY may request succeeding levels of escalation, beginning with the Development Manager. Escalation may proceed if necessary to the Integration Services, Vice President who has the authority to assign all personnel required to support the resolution effort. At each level of escalation, CONTRACTOR Management assumes responsibility for the problem, coordinating problem resolution, and bringing additional resources to the situation as needed. Service Levels DAMION Silver DAMION Silver provides 1-800 telephone support during normal business hours (Monday through Friday 6 AM Eastern Time to 6 PM Pacific Time). This includes direct access to Technical Analysts for problem resolution, bug reporting, documentation clarification and technical guidance during the defined business hours. Level 1 PARs are worked 24x5 until resolved, and Level 2, 3, and 4 PARs are resolved during normal business days and working hours as defined in section 1.C. Custom Maintenance Options In addition to the support programs detailed above, CONTRACTOR will tailor services to meet CITY's unique requirements, such as on-site personnel. These maintenance options are available upon request and are billed at the then current rates. DAM ION Service Program Definitions 1. Product Update and Upgrade Definitions A. Product Updates Product Updates are those improvements and/or modifications to the Software that CONTRACTOR generally makes available as part of the annual maintenance program. On purchasing DAMION products customers who remain current on their maintenance payments are entitled to product updates for those modules that they initially licensed. Typically, these updates include new and improved features and functionality for these existing licensed modules. A customer is not expected to pay additional software update charges for any existing licensed module. B Product Upgrades A Product Upgrade is any product releases, including added functionality, or major enhancement of the Software, that CONTRACTOR markets and licenses for additional fees separately from Updates. Exhibit F-2 - Maintenance Policy 3 of 4 .. . " An upgrade is defined as a module or new block of distinct functionality that has not previously been licensed by the customer. For example, a customer may decide to upgrade DAMION by purchasing the Civil module and adding this to the existing licensed system which comprises only the Criminal module. 2. Service Definitions A. 24x5 Service Service that is 24x5 is service that is provided 24 hours per day, 5 days per week, Monday through Friday. DAM ION Versions 1. Supported Versions It is CONTRACTOR's policy to provide support for the two most current product revisions of the current product version. Maintenance for product revisions is provided via Update releases. CONTRACTOR will provide 12 months notice before de-supporting a product version or revision. CONTRACTOR recommends maintaining your software at currently supported release levels. 2. Version Number Every CONTRACTOR product has an associated version number, which is listed in the format X.Y.Z, for example 3.3.1. Each successive decimal place represents an increasing level of detail. The first digit (X) indicates the version number or update. The revision level is indicated by the second digit (Y). The third digit (Z) indicates the patch level. CITY Responsibilities CONTRACTOR Service programs require that the CITY and CONTRACTOR outline the management of the backup data (Le., storage of backups in a secure off-site location) and outline the process for recovery and re-establishment of the system should the CITY experience a disaster oriented event.. It is recommended that this outline be incorporated into the CITY's disaster recovery I business continuity plan. Exhibit F-2 - Maintenance Policy 4 of 4