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HomeMy WebLinkAboutTiburon Inc; 2009-05-19;RATIFICATION OF AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR COMPUTER AUTOMATED SYSTEM SUPPORT SERVICES TIBURON INC. This Ratification of Amendment No. 1 is entered into as of the 3-1 day of _ , 2009, but effective as of the first day of July, 2009, extending and amending ther agreement dated May 19, 2009 that was effective as of February 19, 2009 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Tiburon Inc., a Virginia corporation, having its primary place of business at 6200 Stoneridge Mall Road, Suite 400, Pleasanton, California 94588, (Contractor) (collectively, the "Parties"). RECITALS A. On May 19, 2009, the Parties executed an Agreement for support services that was effective February 19, 2009 relating to a computer automated system previously developed and implemented by Contractor; and B. The Agreement expired on June 30, 2009 and Contractor continued to work on the services specified therein without the benefit of an agreement; and C. The Parties desire to extend the Agreement for a additional one (1) year beginning on July 1, 2009; and D. The Parties have negotiated and agreed to amend the Agreement's scope of work to include Exhibit 2, "Covered Applications," which is attached hereto and incorporated herein by this reference. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The retroactive extension and Amendment No. 1 to the Agreement is ratified. 2. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one year ending on June 30, 2010 and fund the agreement in an amount not to exceed $94,861.00. 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22..01 5. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this amendment. CONTRACTOR CITY OF CARLSBAD, a municipal corporation [of the State of California *By: (sign here) LQRRAINBM. WOOF/ \ Gfty Cler/y I)TJ ^-^ ' 0 (print name/title) (e-mail address) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: City Attorney 'Assistant City Attorney City Attorney Approved Version #05.22..01 EXHIBIT 2 To Amendment No. 1 [Tiburon Master Support Agreement] COVERED APPLICATIONS In the event of conflict between the terms and conditions set forth herein, other than the stated Annual Fee set forth below and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. Tiburon will provide the Basic Support described in Section 2.1 [Basic Support] of the Agreement for the software applications identified in the table below. The annual fee for such support shall be as set forth in the table below. Such support will commence upon the expiration of any applicable Warranty Period as set forth in the table below. Client #-M1270-09 Covered Application Make, Model, Serial Number of Authorized Server Maintenance Period Annual Fee Period Start End CAD/Ti Stratus ftServer 12 Mo 7/01/09 6/30/10 $ 30,223.00 Model: 1 3300-P3103R-II Serial #:322249 CARS DW HP Proliant server 12 Mo 7/01/09 6/30/10 $ 1400.00 Model: DL380-G3 Serial #:EB85KJNZ33 GCT HP Proliant server 12 Mo 7/01/09 6/30/10 $ 700.00 Model: D530-SFF Serial #:USW4250JL7 Webquery HP Proliant server 12Mo 7/01/09 6/30/10 $ Included Model: DL360-G3 Serial #:EA51KYDZ34 911 Mapping 12 Mo 7/01/09 6/30/10 $ 10,115.00 MDS 12 Mo 7/01/09 6/30/10 $ 19,170.00 MSS/Ti (MqSeries) 12 Mo 7/01/09 6/30/10 $ 17,592.00 Stratus 12 Mo 7/01/09 6/30/10 $ 15,661.00 Total $94,861.00 Authorized site City of Carlsbad 2560 Orion Way Carlsbad. CA 92010 Exhibit 2 - Page 1 of 1 MASTER SUPPORT AGREEMENT Tliis Master Support Agreement (this "Agreement") is entered into this day of J\A^)C, 2009, by and between City of Carlsbad (the "Client") and Tiburon, Inc., a Virginia corporation having its primary place of business at 6200 Stoneridge Mall Road, Suite 400, Pleasanton, California 94588 ("Tiburon"). WHEREAS, the Client has determined that it desires to obtain from Tiburon certain support services relating to a computer automated system previously developed and implemented by Tiburon for the Client; and WHEREAS, Tiburon is qualified to provide the support services specified in this Agreement and, subject to the terms and conditions set forth in this Agreement, Tiburon desires to provide such support services; NOW THEREFORE, in consideration of the mutual covenants contained herein, the Client and Tiburon hereby agree as follows: 1. Definitions Capitalized terms used herein and in any exhibit hereto shall have the definitions set forth on Exhibit 1 attached hereto and incorporated herein by this reference, unless otherwise defined herein. 2. Scope of Work 2.1. Basic Support. Subject to the terms and conditions set forth in this Agreement, Tiburon shall provide the following support for the Covered Applications ("Basic Support"). (a) Application Errors. Tiburon will correct any Error in any of the Covered Applications discovered by the Client during the term of this Agreement, provided (a) the Client provides all information regarding such Error that may be requested by Tiburon in accordance with Section 5.1 hereof [Technical Service Requests], (b) such Error is reproduced by the Client in accordance with Section 5.4 hereof [Error Reproduction], and (c) the Client has provided Tiburon with remote access to the System as required under Section 5.2 hereof [Remote Access]. (b) Customer Support Center. Tiburon will provide toll-free telephone support for routine operational and technical assistance. Support for Priority One and Priority Two Calls relating to Tiburon's Computer Aided Dispatching (CAD) software application, Mobile Data System (MDS) software application, and Message Switch System (MSS) software application shall be available twenty four hours a day, seven days a week. Support for all other calls will be available during Tiburon's normal support hours of 8:00 a.m. to 5:30 p.m. local time (not including weekends and Tiburon holidays). Tiburon reserves the right to charge reasonable call-out fees for any non-Priority One and Priority Two calls received other than during Tiburon's normal support hours. (c) Account Manager. Tiburon will designate, in a written notice delivered in accordance with Section 24 hereof [Notices], a single individual to act as the account manager for purposes of coordinating technical support as set forth herein (the "Account Manager"). The Account Manager shall ensure Tiburon's compliance with, and shall coordinate appropriate schedules in connection with, its obligations set forth herein. Tiburon may change the individual designated hereunder by providing the Client with advance written notice delivered in accordance with Section 26 hereof [Notices] designating the new individual authorized to act as the Account Manager. (d) Status Reports. Tiburon will provide the Client with a monthly status report (a "Monthly Status Report"). Each Monthly Status Report will include a summary of site activity and a summary of requests by the Client for technical services delivered in accordance with Section 5.1 hereof [Technical Service Requests]. Each Monthly Status Report will be delivered to the Client in accordance with the notice provisions set forth in Section 26 hereof [Notices]. Page 1 of 15 Tiburon Master Support Agreement (e) Back-Ups. Subject to the Client's obligations under Section 5.5 hereof [Maintenance and Back-Ups], Tiburon will (a) provide and maintain automated back-up scripts, (b) review on a monthly basis back-up logs to insure required back-ups are being successfully completed; and (c) subject to the Client's obligations under Section 5.5 hereof [Maintenance and Back-Ups], test the back-up procedure on a monthly basis by mounting back-up tapes of a specific date for examination. (f) Interface Updates. Tiburon will provide updates to the CLETS/NCIC/NLETS interface and related Documentation, including all existing screen formats developed and currently supported by Tiburon, for all legal requirements or modifications mandated by the CLETS/NCIC/NLETS , when such requirements or modifications require a modification to the Source Code relating to any Covered Application and are necessary for the proper performance of the Covered Applications. Changes mandated or offered by any county, city or municipal governmental entity as well as changes to the National Crime Information Center and State protocols are outside the scope of this section. (g) Operations Review. So long as the Client's annual fees hereunder exceed Seventy Five Thousand Dollars ($75,000) in the aggregate, Tiburon will be available to visit the Client's facilities at least annually to meet with management, operations and other Client personnel to conduct an operations review of the Covered Applications and the System and an analysis of the Client's automation requirements. A report will be produced to include observations and recommendations regarding the Client's use of the Covered Applications and the System. Tiburon will work with the Client to document this review in the form of a multi-year automation plan. 2.2. Additional Support Options. In addition to Basic Support, the Client may purchase additional support options, such as Advanced Database Support, Advanced System Support, Advanced Network Support and other services that may, from time to time, be offered by Tiburon (each, an "Additional Support Option"). The Client may request information regarding the Additional Support Options currently available from the Tiburon Account Manager. The terms and conditions for each Additional Support Option shall be set forth in a separate exhibit which, upon payment of the required annual fee for such Additional Support Option, shall automatically become part of this Agreement and shall be subject to the terms hereof. The Client may discontinue any Additional Support Option by providing Tiburon at least thirty (30) days prior written notice identifying the Additional Support Option to be discontinued; provided, however, that such discontinuance shall not be effective until the next occurring Payment Date. 2.3. Enhancements. From time to time, the Client may request Tiburon to provide under this Agreement services and materials to furnish, install and implement an Enhancement. The installation and implementation of such Enhancement shall be provided, at Tiburon's option, on a fixed-quote basis with payment milestones or on a time and material basis at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. No Enhancement shall be provided under this Agreement unless (a) this Agreement is amended as necessary or appropriate to include the Enhancement Terms relating to the Enhancement; (b) the Enhancement Terms are attached to this Agreement as a new exhibit and, except as specifically set forth therein, are subject to the terms hereof; (c) the Enhancement Terms include terms regarding final acceptance of the Enhancement; (d) the Enhancement Terms provide that, upon final acceptance of the Enhancement, Exhibit 2 to this Agreement shall be amended to include the Enhancement as a Covered Application subject to the Client's payment of any necessary additional support fees relating to the Enhancement; and (e) the Enhancement Terms provide that, upon final acceptance of such Enhancement, the Software License Agreement shall be amended as necessary or appropriate to grant to the Client the appropriate rights to use the Enhancement, subject to payment in full of all amounts due under the Enhancement Terms. 2.4. Out of Scope Services. From time to time, the Client may request Tiburon to provide under this Agreement certain Out of Scope Services. Tiburon shall be under no firm obligation to perform any Out of Scope Services, but shall undertake to make a good faith effort to perform such services to the extent that it is capable of doing so without substantially interfering with its other obligations under this Agreement or with its obligations to its other customers. Any Out of Scope Services shall be provided, at Tiburon's option, Page 2 of 15 Tiburon Master Support Agreement on a fixed-quote basis with payment milestones or on a time and material basis at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 3. Term The term of this Agreement shall commence on February 19th, 2009 and shall continue until June 30, 2009, subject to the annual appropriation of funds by the City Council. In addition, the Client, through the City Manager, may renew this Agreement for up to 5 additional 1-year terms, subject to satisfactory performance by Tiburon and the annual appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. Fees and Payment 4.1. Annual Support Fees (a) Basic Support. The Client shall pay an annual or prorated fee for Basic Support for each of the Covered Applications. The amount of such annual fee shall be set forth on Exhibit 2 attached hereto and incorporated herein by this reference and shall be paid in advance on or prior to the expiration of any Warranty Period applicable to such Covered Application and, thereafter, on each Payment Date during the term of this Agreement. (b) Additional Support Options. The Client shall pay an annual or prorated fee for any requested Additional Support Options. The amount of such annual fee shall be set forth on the exhibit pertaining to such Additional Support Option and shall be paid on or prior to the commencement of any services relating to such Additional Support Option and, thereafter, on each Payment Date during the term of this Agreement unless such Additional Support Option has been discontinued in accordance with Section 2.2 hereof [Additional Support Options]. 4.2. Annual Adjustments. The fees payable pursuant to Section 4.1 hereof [Annual Support Fees] will be increased on an annual basis by no more than five percent (5%) upon at least thirty (30) days prior written notice to the Client. Any such increase shall become effective on the next occurring Payment Date. 4.3. Invoices. Invoices for the annual fees required pursuant to Section 4.1 hereof [Annual Support Fees] shall be payable on or prior to each Payment Date during the term of this Agreement. All other invoices issued hereunder shall be payable within forty-five (45) days of receipt unless otherwise specifically provided therein. 5. Client Responsibilities 5.1. Technical Service Requests. The Client shall provide all information requested by Tiburon necessary to complete its Technical Service Request Form for each request for technical services, whether under this Agreement or otherwise. 5.2 Remote Access. The Client shall install and monitor during the term of this Agreement a VPN device to provide Tiburon remote access to the System. Tiburon shall not be responsible for any costs relating to the installation, maintenance and use of such equipment and all associated telephone use charges. Tiburon shall use the data connection solely in connection with the provision of its services hereunder. The Client shall run appropriate tests following each remote access as requested by Tiburon. 5.3 Physical Access. The Client shall provide Tiburon technical support employees who have submitted to and passed a background check by the Carlsbad Police Department with physical access to the System when required. After normal business hours, the Client shall ensure that one of the Technical Support Coordinators designated under Section 5.11 hereof [Technical Support Coordinators] can be reached Page 3 of 15 Tiburon Master Support Agreement by phone or pager to (a) provide physical access to the System within two (2) hours of Tiburon's request for such access, and (b) remain on-site until Tiburon determines that there is no longer a need for physical access. 5.4 Error Reproduction. Upon detection of any Error in any of the Covered Applications, the Client shall provide Tiburon a listing of output and any other data, including databases and back-up systems, that Tiburon may reasonably request in order to reproduce operating conditions similar to those present when the Error occurred. 5.5 Maintenance and Back-Ups. The Client shall take reasonable steps to ensure that maintenance and back-up activities relating to the Covered Applications and the System are carried out in accordance with the most recent System Administration Guidelines provided by Tiburon to the Client. 5.6 Third-Party Product Support. The Client shall obtain and maintain in effect during the term of this Agreement the technical support contracts for certain Third-Party Products as specified on Exhibit 3 attached hereto and incorporated herein by this reference. If Tiburon, in order to fulfill its responsibilities under this Agreement, needs to interact with entities providing support services for Third-Party Products, Client will facilitate this interaction. 5.7 System Security. The Client shall ensure that the security of the System conforms in all respects to the state-mandated law enforcement telecommunications requirements. The Client shall ensure that no workstations have access to the Covered Applications other than those licensed by Tiburon to access the Covered Applications and that such access is limited to only those TCP/IP addresses and TCP/IP service ports identified by Tiburon required to support such workstations. 5.8 Modifications to System Environment. Prior to making any modifications to the System Environment, Client will consult with Tiburon to determine what effect, if any, the modifications will have on the System's performance and what measures, if any, need to be taken to ensure the System continues to perform as required by this Agreement. This requirement does not apply to modifications made in connection with a new Software release or other maintenance service provided for under this Agreement as Tiburon will have already identified, as part of the release or service, what measures, if any, need to be taken. 5.9 Authorized Client Representative. The Client shall designate, in a written notice delivered in accordance with Section 26 hereof [Notices], a single individual to act as the Client's representative for purposes of this Agreement (the "Client Representative"). Such individual shall serve as the primary contact to coordinate: (a) all matters relating to this Agreement; (b) Client's compliance with its responsibilities under this Agreement; and (c) appropriate schedules in connection with Tiburon's services under this Agreement. The Client may change the individual designated hereunder by providing Tiburon advance written notice delivered in accordance with Section 24 hereof [Notices] designating the new individual authorized to act as the Client Representative. 5.10 Technical Support Coordinators. The Client shall designate, in a written notice delivered in accordance with Section 24 hereof [Notices], one or more individuals to act as the Client's technical support coordinator (a "Technical Support Coordinator"). The Client shall ensure that each Technical Support Coordinator designated hereunder shall have received the training required under Section 5.12 hereof [Training] and shall otherwise be familiar with the Covered Applications and the System. The Client shall ensure that, at all times, a Technical Support Coordinator is available (a) to screen operational assistance calls and handle operational problems, where appropriate; (b) to provide access to the System as required under Section 5.3 hereof [Physical Access]; (c) to provide on-site technical assistance as required by Tiburon to aid Tiburon in performing its services hereunder; and (d) to review all Monthly Status Reports delivered hereunder and, if required, provide Tiburon with required direction regarding recommended preventative maintenance activities. The Client may change any individual designated hereunder by providing Tiburon with advance written notice delivered in accordance with Section 24 hereof [Notices] designating the new individual authorized to act as a Technical Support Coordinator. Page 4 of 15 Tiburon Master Support Agreement 5.11 Training. The Client shall ensure that all Technical Support Coordinators and other personnel have received necessary training, and otherwise maintain sufficient personnel with sufficient training and experience to perform its obligations under this Agreement. 5.12 Operations Review. The Client and Tiburon shall meet as may be reasonably requested by either party to discuss operational issues and the status of the Covered Applications and the other components of the System, and as required to provide timely responses to issues identified by Client or Tiburon related to maintenance of the Covered Applications or the other components of the System. The Client and Tiburon shall ensure that key personnel participate in the operations review process. 6. Exclusions 6.1. Failure to Observe Obligations. Basic Support provided hereunder is expressly conditioned on the observance of the responsibilities of the Client set forth in Section 5 hereof [Client Responsibilities] and in the Software License Agreement. Any Additional Support Option provided hereunder is expressly conditioned on the observance of the responsibilities of the Client set forth in Section 5 hereof [Client Responsibilities], in the Software License Agreement and in the exhibit pertaining to such Additional Support Option. 6.2. Failure of Remote Access. If the Client fails for any reason to provide remote access to the System as required by Section 5.2 hereof [Remote Access], Tiburon will, at the Client's request, provide on-site services to correct an Error to the extent otherwise required hereunder and will charge the Client for such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 6.3. Unauthorized Modifications. Tiburon is under no obligation to correct any Error in any of the Covered Applications if the Error is due to a modification or alteration to such Covered Application in violation of the terms of the Software License Agreement or relates to any portion of such Covered Application that has been affected by software not installed by Tiburon. Tiburon is under no obligation to correct any problems caused by any modification or alteration to any component of the System or to the System Environment in violation of the terms of this Agreement or caused by software or hardware not installed by Tiburon. If requested by the Client, Tiburon will provide technical support services to resolve such problems pursuant to Section 2.4 hereof [Out of Scope Services] and will charge the Client for such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 6.4. Unauthorized Use. Tiburon is under no obligation to correct any Error in any of the Covered Applications or any problems with any other component of the System if such Error or other problem is caused by (a) negligence, misuse or abuse on the part of any party other than Tiburon; (b) is due to exposure to conditions outside the range of the environmental, power and operating specifications provided by Tiburon in the Site Specifications delivered pursuant to Section 5.9 hereof [System Modifications]; or (c) use of any of the Covered Applications or any other component of the System for any purpose other than that for which it was originally acquired. If requested by the Client, Tiburon will provide technical support services to resolve such problems pursuant to Section 2.4 hereof [Out of Scope Services] and will charge the Client for such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 6.5. Third-Party Products. Tiburon shall have no responsibility for correcting or resolving any errors, defects or failures in any Third-Party Products other than Oracle, IBM MQSeries and Maverick Mapping. Tiburon's only obligation with respect to such Third-Party Products is to assist with the coordination of support services with the appropriate third-party vendor to the extent such support services are available to the Client. 6.6. Third-Party Product Compatibility. Tiburon shall have no responsibility for any Third-Party Product provided and installed on or integrated into the System by any other party without Tiburon's prior written authorization, including but not limited to responsibility for the installation and Page 5 of 15 Tiburon Master Support Agreement integration of any such Third-Party Products, the condition, operation and performance of any such Third- Party Products, the compatibility of any such Third-Party Products with the Covered Applications, and any impact any such Third-Party Products have on the overall operation or performance of any of the Covered Applications or any other component of the System. If requested by the Client, Tiburon will provide technical support services pursuant to Section 2.4 hereof [Out of Scope Services] to resolve any operation or performance problems relating to any of the Covered Applications or any other component of the System caused by any such Third-Party Products or to assist with the integration of any such Third-Party Products with or into any of the Covered Applications or any other component of the System. Tiburon will charge the Client for any such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 6.7. General Disclaimer. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, OR IN THE SOFTWARE LICENSE AGREEMENT, TIBURON DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY OF THE COVERED APPLICATIONS OR ANY OTHER COMPONENT OF THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF SUITABILITY, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. 7. Confidential Information 7.1 Client Confidential Information. Tiburon will regard all Client files and data as the Client's confidential information. Tiburon will not disclose the Client's confidential information to any third parties without the written consent of the Client. 7.2 Tiburon Confidential Information. The Client will regard Tiburon's files and data, Tiburon's Software and Documentation, and any other information or data provided by Tiburon that is clearly labeled "confidential" or "proprietary" as Tiburon's confidential information. The Client will not release or provide access to third parties, except the Client's consultants and contractors working on or with the System who agree to abide by the terms of this provision, without the prior written consent of Tiburon. The above obligations do not apply to any information which: (a) Is already in the public domain at the time of disclosure or later becomes available to the public without a breach of this Agreement; (b) Was, as between the Client and Tiburon, lawfully in the possession of the recipient without obligation of confidentiality, prior to receipt under this Agreement; (c) Is received independently from a third party free to lawfully disclose the information; (d) Is the subject of a judicial subpoena or similar process for disclosure in connection with any action or proceeding, provided that notice of the demand is provided to allow an opportunity to seek a protective order or other appropriate remedy prior to disclosure; or (e) Is independently developed. 7.3 Public Records Act Requests. In the event the Client receives a request under the California Public Records Act for Tiburon's confidential information, the Client will promptly notify Tiburon. Within five (5) days after receiving the notice, Tiburon will inform the Client whether Tiburon objects to disclosure of the requested information. If Tiburon does not object to disclosure or if Tiburon fails to respond to the Client within five (5) days, the Client will be relieved of its confidentiality obligation with respect to the requested information and may release the requested information. If Tiburon does object to disclosure, then the Client will decline to produce the requested information and Tiburon will indemnify, defend, and hold the Client harmless from and against all claims, damages, costs of litigation and attorney fees arising out of the declination. Page 6 of 15 Tiburon Master Support Agreement 8. Insurance 8.1 General Requirements. Tiburon agrees to obtain and maintain for the duration of this Agreement insurance against claims for injuries to persons or damage to property that may arise out of or in connection with the performance of Tiburon's obligations under this Agreement by Tiburon or its employees, agents, or subcontractors. If Tiburon subcontracts any of the services to be performed under this Agreement, then the subcontractor must obtain and maintain this insurance as well. However, the subcontractor's insurance will not relieve Tiburon from meeting the insurance requirements or from otherwise being responsible for the subcontractor. 8.2 Insurer's Qualifications. The insurance must be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V" and will meet the Client's requirements as stated in City Council Resolution No. 91-403. 8.3. Coverages and Limits. Tiburon will maintain the types of coverages and minimum limits indicated below, unless a lower amount is approved by the City Attorney or City Manager: 8.3.1 Comprehensive General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work performed under this Agreement or the general aggregate will be twice the required per occurrence limit. 8.3.2 Automobile Liability. $1,000,000 combined single-limit per accident for bodily injury and property damage. 8.3.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California and Employer's Liability limits of $1,000,000 per accident for bodily injury. 8.3.4 Professional Liability. Errors and omissions liability appropriate to Tiburon's profession with limits of not less than $1,000,000 per claim. 8.4 Additional Requirements. 8.4.1 Additional Insured Endorsement. All of the insurance policies, except the Workers' Compensation and Professional Liability policies, will name, or be endorsed to name the Client, including its officers, employees, and volunteers, as additional insureds. 8.4.2 Primary Coverage. The insurance policies will be primary to any insurance policies carried by the Client. 8.4.3 Certificates of Insurance. Tiburon will furnish certificates of insurance for all of the insurance policies to the Client before commencement of work. 8.4.4 Occurrence Coverage. All of the insurance policies will provide for occurrence coverage, except the Professional Liability policy, which will be written as claims-made coverage. 8.4.5 Continuous Coverage. All of the insurance polices will remain in effect through the Warranty Period, except the Professional Liability policy, which will remain in effect for five (5) years following the end of the Warranty Period. In addition, none of the insurance policies may be canceled or reduced in coverage without thirty (30) days' prior written notice to the Client sent by certified mail. 8.5 Failure to Obtain or Maintain Insurance. If Tiburon fails to obtain or maintain any of the insurance required by this section, then the Client may declare Tiburon in default and terminate this Agreement without further obligation to Tiburon. Alternatively, at the Client's election, the Client may Page 7 of 15 Tiburon Master Support Agreement purchase replacement insurance or pay the premiums that are due on Tiburon's existing policies in order to maintain the required coverage. Tiburon is responsible for any payments made by the Client to obtain or maintain the insurance required by this section and the Client may collect the premiums from Tiburon or deduct the premium amounts from any sums due Tiburon under this Agreement. 9. Limitation of Liability Neither party will be liable to the other party for consequential, incidental, or special damages, lost profits or attorneys' fees in connection with any matters relating to this Agreement (except per section 10 Indemnification). Tiburon's liability to the Client whether in tort, contract, or otherwise shall be limited to Ten Million Dollars ($10,000,000). 10. Indemnification 10.1 General Obligation. Tiburon agrees to indemnify, defend and hold the Client and its officers, agents, and employees harmless from and against any and all claims, losses, damages, obligations, liabilities and expenses (including attorney fees) arising from: (a) Any infringement of any copyright, trademark, patent, or other proprietary right, or misappropriation of any trade secrets in connection with any Software, Documentation, Services or other Products supplied by Tiburon in connection with this Agreement; (b) Any act(s) of negligence or willful misconduct by Tiburon or any of its agents, employees or subcontractors, including, but not limited to, any liability caused by an accident or other occurrence resulting in bodily injury, death, sickness or disease to any person(s) or damage or destruction to any property, real or personal; or (c) The Client's refusal to produce Tiburon's confidential information pursuant to a request to review public Client records, after receiving a request for the item and after being instructed by Tiburon not to produce it; or (d) Any claims by any persons or entities supplying labor or material to Tiburon in connection with the performance of Tiburon's obligations under this Agreement. (e) NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL TIBURON BE LIABLE FOR ANY LOSS OR DAMAGES RELATED TO THE OPERATION, DELAY, OR FAILURE OF THE SOFTWARE OR EQUIPMENT PROVIDED BY TIBURON OR FOR THE ACCURACY OR COMPLETENESS OF DATA, AND UNDER NO CIRCUMSTANCES SHALL TIBURON BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. 11. Service Warranty During the term of the Maintenance and Support Agreement between the parties, Tiburon warrants that it will remedy any failure, malfunction, Defect or nonconformity in the System, as follows: 11.1 Priority One Failures. For purposes of this Agreement, a "Priority One Failure" will have occurred if the Client has essentially no effective use of the System or a major subsystem and no workaround acceptable to the Client is available in the System. The impact of the Failure on the Client's safety services operations is critical. Tiburon agrees that it will respond with as many qualified and knowledgeable representatives as necessary within one (1) hour after notification by the Client, to remedy a Priority One Failure. The representatives will furnish uninterrupted, continuous efforts or a plan acceptable to the Client to remedy the Priority One Failure on an emergency basis. During this time, Tiburon's representatives will provide a status report to the City's Technical Coordinator every two (2) hours until the Priority One Failure is remedied. If the Priority One failure is not remedied within eight (8) hours of its initial report, Tiburon's Vice Page 8 of 15 Tiburon Master Support Agreement President/Western Division Manager (or their management designee) will contact the Client's Police Chief (or a designee) and report on what efforts are being taken to resolve the Priority One Failure and an expected time frame for correcting the Priority One Failure. If the Priority One Failure is not remedied within twenty-four (24) hours of its initial report, Tiburon will take all measures necessary to restore the System or the major subsystem to operation, including sending technical support personnel to the Client's installation site(s) immediately and by the most expeditious route, delivering temporary systems or components to replace malfunctioning systems or components, and any other actions the Client determines to be necessary to return the System or a major subsystem to service. 11.2 Priority Two Failures. For purposes of this Agreement, a "Priority Two Failure" will have occurred if the Client has no effective use of the System or a major subsystem, but a workaround for the problem acceptable to the Client is available in the System. The impact of the Failure on the Client's safety services operations is significant. Tiburon agrees to respond to any request for service for a Priority Two Failure as soon as reasonably possible, but no later than four (4) hours after receipt of notification and request by the Client. Tiburon agrees that it will provide a response by qualified and knowledgeable representative(s) and that the representative(s) will furnish uninterrupted, continuous efforts or a plan acceptable to the Client to remedy the Priority Two Failure within forty-eight (48) hours. If resolution requires more than twenty-four (24) hours, Tiburon's representative(s) will provide a status report to the Client's Technical Coordinator every (8) hours. If the Priority Two Failure is not remedied within forty-eight (48) hours of its initial report, Tiburon's Vice President/Western Division Manager (or their management designee) will contact the Client's Police Chief (or a designee) and report on what efforts are being taken to resolve the Priority Two Failure and an expected time frame for correcting the Priority Two Failure. If the Priority Two Failure is not remedied within seventy-two (72) hours of its initial report, Tiburon will take all measures necessary to restore the System or the major subsystem to operation, including sending technical support personnel to the Client's installation site(s) immediately and by the most expeditious route, delivering temporary systems or components to replace malfunctioning systems or components, and any other actions the Client determines to be necessary to return the System or the major subsystem to service. 11.3 Priority Three Failures. For purposes of this Agreement, a "Priority Three Failure" will have occurred if a key function or operation of the System or a major subsystem is substantially impaired, but the Client still has effective use of the System or the major subsystem. The impact of the Failure on the Client's safety services operations is moderate. Tiburon agrees to respond to any request for service for a Priority Three Failure as soon as reasonably possible, but no later than eight (8) business hours after receipt of notification and request by the Client. Tiburon agrees that it will respond with sufficient qualified and knowledgeable representative(s) to remedy the Priority Three Failure within five (5) business days. If the Priority Three Failure is not resolved within this time period, Tiburon's representative(s) will provide daily status reports to the Client's Technical Coordinator. If the Priority Three Failure is not resolved within ten (10) business days of its initial report, Tiburon's Vice President/Western Division Manager (or their management designee) will contact the Client's Police Chief (or a designee) and report on what efforts are being taken to resolve the Priority Three Failure and an expected time frame for resolution. Priority Three Failures are handled during business hours as described in section 2 Basic Support. 11.4 Priority Four Failures. For purposes of this Agreement, a "Priority Four Failure" is a malfunction, Defect, or nonconformity other than a Priority One, Priority Two, or Priority Three Failure. It also includes purely informational and educational issues. Tiburon agrees to resond to any request for service for a Priority Four Failure as soon as reasonably possible. For those Priority Four Failures that do require a change/fix to the Tiburon software, Tiburon agrees to respond no later than the first new release, following the next scheduled release of applicable product(s). Page 9 of 15 Tiburon Master Support Agreement 11.5 Determination of Priority. When a failure occurs, the Client will have the sole discretion to determine the priority level of the failure. In addition, the Client will have the sole discretion to require the priority level of a failure to be increased or permit the priority level of a failure to be reduced. 11.6 Cumulative Failures. Cumulative, contemporaneous failures, regardless of their individual priorities, will be regarded as a Priority One failure if, in the Client's determination, they result in the Client have essentially no effective use of the System or a major subsystem. 11.7 Permanent Cure. If the Client accepts a workaround or other temporary cure as the remedy for any reported failure, Tiburon shall provide a permanent correction or cure within one hundred eighty days (180) days after the permanent cure becomes available, or with the next scheduled release of fixes after the permanent cure becomes available, whichever is sooner. 12. Claims Against Client 12.1 False Claims. Tiburon acknowledges that if a false claim is submitted to the Client, it may be considered fraud and Tiburon may be subject to criminal prosecution. Tiburon acknowledges that the False Claims Act, California Government Code sections 12650 et seq., provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If the Client seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Tiburon acknowledges that the filing of a false claim may subject Tiburon to an administrative debarment proceeding, which may result in Tiburon being prevented from acting as a contractor on any public work or improvement for a period of up to five years. Tiburon acknowledges debarment by another jurisdiction is grounds for the Client to terminate the Agreement. 12.2 Carlsbad False Claims Ordinance. The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated by reference. 12.3 Government Claims Act Compliance. If any claim or dispute exists under this Agreement, Tiburon is required to comply with the claim presentation requirements set forth in the Government Claims Act, Government Code section 900 et seq. 13. Dispute Resolution If a dispute should arise regarding the performance of the Services under this Agreement, the following procedure will be used to resolve any questions of fact or interpretation. First, the parties will each reduce the dispute and their respective views to writing. Each party will then forward a copy of its writing to the other along with a proposed resolution of benefit to both parties. Within ten (10) business days, each party will reply to the other, commenting on the proposed resolutions and offering additional suggestions for resolution, if appropriate and applicable. If this process does not result in a mutually agreeable resolution, the writings and replies will be forwarded to the City Manager for resolution. The City Manager will consider the facts and resolutions proposed by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be the Client's final position on the matter. Nothing in this procedure prohibits the parties from seeking remedies available to them at law. 14. Termination 14.1. Termination for Failure of License. In the event that the license relating to any of the Covered Applications is terminated or becomes unenforceable for any reason, Tiburon's obligation to provide any support hereunder for such Covered Application shall immediately and automatically terminate. Page 10 of 15 Tiburon Master Support Agreement 14.2. Termination for Other Defaults. In the event that either party hereto materially defaults in the performance of any of its obligations hereunder the other party may, at its option, terminate this Agreement, by providing the defaulting party thirty (30) days' prior written notice of termination delivered in accordance with Section 26 hereof [Notices], which notice shall identify and describe with specificity the basis for such termination. If, prior to the expiration of such notice period, the defaulting party cures such default to the satisfaction of the non-defaulting party (as evidenced by written notice delivered by the non-defaulting party in accordance with Section 26hereof), termination shall not take place. 14.3. Termination Without Cause. Either party hereto may terminate this Agreement without cause by providing the other party at least ninety (90) days' prior written notice of termination delivered in accordance with Section 26 hereof [Notices]. The effective date for any termination pursuant to this Section 14.3shall be the next occurring Payment Date. 14.4. Consequences of Termination. . Upon expiration or termination of this Agreement, the parties will promptly: (a) return to the other all computer programs, files, documentation, data, media, related material and any other material and equipment that is owned by the other. In addition, Tiburon will deliver to the Client all work product currently in existence and for which payment has been made. All provisions of this Agreement that by their nature would reasonably be expected to continue after the termination of this Agreement shall survive the termination of this Agreement. 15. Independent Contractor Status The Client and Tiburon are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto. Neither party shall have any authority to enter into agreements of any kind on behalf of the other and shall have no power or authority to bind or obligate the other in any manner to any third party. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. Each party hereto represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party. Tiburon agrees to indemnify, defend, and hold the Client harmless for any tax, retirement contribution, social security withholding, overtime payment, unemployment payment, or workers' compensation payment that the Client may be required to make on behalf of Tiburon or any employee or subcontractor of Tiburon for work done under this Agreement. At the Client's election, the indemnification amount may be deducted from any balance owing by the Client to Tiburon. 16. Assignment Neither party hereto may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding this, Tiburon may assign this Agreement to its successor in connection with a sale of its business without obtaining Client's consent, provided Tiburon gives Client thirty (30) days' notice of the assignment. In the event of such assignment, Client shall have the right to terminate this Agreement without further obligation to Tiburon and shall be entitled to a prorata refund of any prepaid maintenance fees. If Client determines not to exercise its right to terminate the Agreement, Tiburon and the successor shall promptly complete any documentation required by Client to transfer the purchase order for this Agreement from Tiburon to the successor. Subject to the foregoing, each and every covenant, term, provision and agreement contained in this Agreement shall be binding upon and inure to the benefit of the parties' permitted successors, executors, representatives, administrators and assigns. 17. No Third Party Beneficiaries This Agreement is entered into for the sole benefit of the Client and Tiburon and, where permitted above, their permitted successors, executors, representatives, administrators and assigns. Nothing in this Agreement shall be construed as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other Page 11 of 15 Tiburon Master Support Agreement entity, including, without limitation, the general public or any member thereof, or to authorize anyone not a party to this Agreement to maintain a suit for personal injuries, property damage, or any other relief in law or equity in connection with this Agreement. 18. Governing Law All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement shall in all respects be governed by and determined in accordance with the laws of the State of California without giving effect to the choice of law principles thereof. The United Nations Convention on the International Sale of Goods shall not apply to any transactions contemplated by this Agreement. 19. Venue All legal proceedings brought in connection with this Agreement may only be brought in a state or federal court located in the County of San Diego, State of California. Each party hereby agrees to submit to the personal jurisdiction of those courts for any lawsuits filed there against such party arising under or in connection with this Agreement. 20. Advice of Counsel Each party hereto has been afforded the opportunity to consult with counsel of its choice before entering into this Agreement. The parties waive the provisions of California Civil Code Section 1654 such that any ambiguity in this Agreement may not be construed against either party. 21. Amendment No amendment or other modification of this Agreement shall be valid unless pursuant to a written instrument referencing this Agreement signed by duly authorized representatives of each of the parties hereto. 22. Waiver In order to be effective, any waiver of any right, benefit or power hereunder must be in writing and signed by an authorized representative of the party against whom enforcement of such waiver would be sought, it being intended that the conduct or failure to act of either party shall imply no waiver. Neither party shall by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. No waiver of any right, benefit or power hereunder on a specific occasion shall be applicable to any facts or circumstances other than the facts and circumstances specifically addressed by such waiver or to any future events, even if such future events involve facts and circumstances substantially similar to those specifically addressed by such waiver. No waiver of any right, benefit or power hereunder shall constitute, or be deemed to constitute, a waiver of any other right, benefit or power hereunder. Unless otherwise specifically set forth herein, neither party shall be required to give notice to the other party, or to any other third party, to enforce strict adherence to all terms of this Agreement. 23. Force Majeure Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement (and the failure or delay will not be deemed a default of this Agreement or grounds for termination) if both of the following conditions are satisfied: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non-performing party through the use of alternate sources, work-around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by fire, flood, earthquake, hurricane, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, court order, or other circumstances beyond the non-performing party's control (excluding acts or omissions of the non-performing party's vendors or subcontractors). Page 12 of 15 Tiburon Master Support Agreement Upon the occurrence of an event which satisfies both of the above conditions (a "Force Majeure Event"), the non-performing party will be excused from any further performance of those obligations under this Agreement affected by the Force Majeure Event for as long as (a) the Force Majeure Event continues; and (b) the non-performing party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. Upon the occurrence of a Force Majeure Event, the non-performing party will immediately notify the other party by telephone (to be confirmed by written notice within two (2) days of the failure or delay) of the occurrence of a Force Majeure Event and will describe in reasonable detail the nature of the Force Majeure Event. If any Force Majeure Event prevents Tiburon from performing its obligations for more than thirty (30) days, the Client may terminate this Agreement without further obligation to Tiburon. Labor shortages, strikes, slow-downs, walkouts, lockouts, industrial disturbances, and other labor disputes do not constitute "Force Majeure Events" and are not excused under this provision. 24. Severability If any provision of this Agreement shall for any reason be held to be invalid, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, such provision shall be construed so as to make it enforceable to the greatest extent permitted, such provision shall remain in effect to the greatest extent permitted and the remaining provisions of this Agreement shall remain in full force and effect. 25. Entire Agreement This Agreement sets forth the final, complete and exclusive agreement and understanding between Tiburon and the Client relating to the subject matter hereof and supersedes all quotes, proposals understandings, representations, conditions, warranties, covenants, and all other communications between the parties (oral or written) relating to the subject matter hereof. Tiburon shall not be bound by any terms or conditions contained in any purchase order or other form provided by the Client in connection with this Agreement and any such terms and conditions shall have no force or effect. No affirmation, representation or warranty relating to the subject matter hereof by any employee, agent or other representative of Tiburon shall bind Tiburon or be enforceable by the Client unless specifically set forth in this Agreement. 26. Notices All notices, requests, demands, or other communications required or permitted to be given hereunder shall be in writing addressed to the parties at their respective addresses set forth below and shall be deemed to have been duly given when (a) delivered in person; (b) sent by facsimile transmission indicating receipt at the facsimile number where sent; (c) one (1) business day after being deposited with a reputable overnight air courier service; or (d) three (3) business days after being deposited with the United States Postal Service, for delivery by certified or registered mail, postage pre-paid and return receipt requested. All notices and other communications regarding default or termination of this Agreement shall be delivered by hand or sent by certified mail, postage pre-paid and return receipt requested. Either party may from time to time change the notice address set forth below by delivering notice to the other party in accordance with this section setting forth the new address and the date on which it will become effective. If to Tiburon: Tiburon, Inc. 6200 Stoneridge Mall Road, Suite 400 Pleasanton, CA 94588 Page 13 of 15 Tiburon Master Support Agreement Attention: VP of Contracts Phone: 925-621-2700 Fax: 925-621-2791 If to the Client: Public Safety IT Manager City of Carlsbad 2560 Orion Way Carlsbad, CA 92010 Phone: 760-931-2176 Fax: 760-931-8473 27.Construction The paragraph and section headings used in this Agreement or in any exhibit hereto are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement. Any term referencing time, days or period for performance shall be deemed calendar days and not business days, unless otherwise expressly provided herein. 28. Counterparts This Agreement may be signed in two or more counterparts, each of which shall constitute an original, and both of which shall constitute one and the same document. Page 14 of 15 Tiburon Master Support Agreement SIGNATURE PAGE NOTARIAL ACKNOWLEDGMENT OF EXECUTION BY TIBURON SIGNATORIES MUST BE ATTACHED (PLACE CORPORATE SEAL HERE) By: (signature) (print name and title) "LORRAINE M. WOOD City Clerk President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secreta^upder the corporate seal empowering that officer to bind the corporation. -vXX - - - ''' APPROVED AS TO FORM: RONALD R. BALL City Attorney Assistant City Attorney Page 15 of 15 Tiburon Master Support Agreement CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of -KV ?^\\J/\Vft OrJMAt 04,4AM . before me.^ X Date' _ X personally appeared Kftt~\ ft &\^lJ% ^0$i&k THERESA GUTIERREZ 3Sl*ulfK-& COMM. #1788573 K&&KQ NOTARY PUBLIC -CALIFORNIA VfePw? SAN JOAOUIN COUNTY\gjgbjJJlF My Comm. Expcres JAN. 10, 2012 Place Notary Seal Above or? }SS. Name and Title oTcfrficerTe.g., "Jane Doe, Notary Public") Name(s) of Sltfner(s) D personally known to me Si proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. f >^ """*" Siojjfrfure of Notary Public -rimi » i Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Sianer(s) Other Than Named Above: Capacity(ies Claimed by Signer Signers Name: LJ Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: Number of Paaes: ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^B WI(-iH 1 I Hi IMKPWIN 1 ^^^^H ^^^^^^^^^^^^^^^••••^^^^•ta^H^^H OF .SIHNFR ^^^1Top of thumb here © 1999 National Notary Association • 9350 De Soto Are., P.O. Box 2402 • Chatswortn, CA 91313-2402 • www.nationalnotary.org Reorder: Call Toll-Free 1-800-876-6827 CORPORATE CERTIFICATE OF AUTHORITY I, Cindy M. Landis, Corporate Secretary of Tiburon, Inc., a Virginia corporation (the "Corporation"), DO HEREBY CERTIFY that the following is pursuant to a Unanimous Written Consent of the Board of Directors of Tiburon, Inc. in Lieu of Meeting of the Board of Directors on September 15, 2008, and the same is now in full force and effect. "RESOLVED, that the CEO, each President, each Vice President, the Treasurer, Secretary, and Assistant Secretary and each of them, is authorized to execute and deliver, in the name of and on behalf of the Corporation and under its corporate seal or otherwise, any agreement or other instrument or document ('Contract') in connection with any matter or transaction that shall have been duly approved; and the execution and delivery of any Contract by any of the aforementioned officers shall be conclusive evidence of such approval." FURTHER, I CERTIFY that James R. O'Neill is CEO Jeffrey Stone is President Bernie Demko is COO Paul Murray is Treasurer Maria Szymanek is Vice President Finance Cindy M. Landis is Secretary FURTHER, I CERTIFY that any of the aforementioned officers or employees of the Corporation are authorized to execute and commit the Corporation to the conditions, obligations, stipulations and undertakings contained in Contracts with, and proposals submitted to, customers of the Corporation and that all necessary corporate approvals have been obtained in relationship thereto. IN WITNESS THEREOF, I have set my hand this 15th day of September, 2008 CORPORATE SEAL Of any) Corporate Secretary EXHIBIT 1 To Tiburon Master Support Agreement DEFINITIONS This Exhibit is attached to, incorporated into, and forms a part of the Tiburon Master Support Agreement, dated ^ ___ 200^, between Tiburon and the Client (herein referred to as the "Agreement"). Capitalized terms useGlrTthe Agreement or any exhibit thereto shall have the definitions set forth herein unless otherwise defined in the Agreement. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. 1. "Account Manager" is defined in Section 2.1(c) [Account Manager] of the Agreement. 2. "Additional Support Option" is defined in Section 2.2 [Additional Support Options] of the Agreement. 3. "As-Built Documentation" shall mean, with respect to any of the Covered Applications, the specifications for such Covered Application delivered to the Client upon the Client's acceptance of such Covered Application, as the same may be modified or supplemented from time to time to reflect Enhancements provided hereunder. 4. "Authorized Server" shall mean, with respect to any of the Covered Applications, the server identified as corresponding to such Covered Application on Exhibit 2 attached to the Agreement and incorporated therein by reference. 5. "Authorized Site" shall mean, with respect to any of the Authorized Servers, the address and room number identified as corresponding the such Authorized Server on Exhibit 2 attached to the Agreement and incorporated therein by reference. 6. "Basic Support" is defined in Section 2.1 [Basic Support] of the Agreement. 7. "Client" is defined in the preamble to the Agreement. 8. "Client Confidential Information" is defined in Section 7.1 [Protection of Confidential and Proprietary Information] of the Agreement. 9. "Client Representative" is defined in Section 5.10 [Authorized Client Representative] of the Agreement. 10. "Communications Interfaces" shall mean ethernet networking, serial connectivity to net clock and ANI/ALI, serial connectivity to HACMP, national, state and local governments, TCP/IP or other routing statements. 11. "Covered Application" shall mean each software application developed by Tiburon in accordance with the As-Built Documentation relating thereto which application is identified as a Covered Application on Exhibit 2 attached to the Agreement and incorporated therein by reference, including all Maintenance Modifications thereto, all Derivative Works thereof, and all related Documentation. 12. "Derivative Works" shall mean, with respect to any Covered Application, any translation, abridgement, revision, modification, or other form in which such Covered Application may be recast, transformed, modified, adapted or approved after the Effective Date. 13. "Dispute Notice" is defined in Section 13.1 [Informal Dispute Resolution] of the Agreement. Page 1 of 3 Exhibit 1 to Master Support Agreement 14. "Documentation" means all written, electronic, or recorded works that describe the use, features, functional capabilities, performance standards, and reliability standards of the System, or any subsystem, component, or interface, and that are published or provided to the Client by Tiburon or its subcontractors, including, without limitation, all end user manuals, training manuals, guides, program listings, data models, flow charts, logic diagrams, and other materials related to or for use with the System. 15. "Effective Date" is defined in the preamble to the Agreement. 16. "Enhancement" shall mean, with respect to any Covered Application, a computer program modification or addition, other than a Maintenance Modification, that alters the functionality of, or adds new functions to, such Covered Application and that is integrated with such Covered Application after the Effective Date, or that is related to a given Covered Application but offered separately by Tiburon after the Effective Date. 17. "Enhancement Terms" shall mean, with respect to any Enhancement provided pursuant to the Agreement, the mutually negotiated terms and conditions specifically relating to an Enhancement and included as part of the Agreement in accordance with Section 2.3 [Enhancements] thereof. 18. "Error" shall mean, with respect to any Covered Application, a defect in the Source Code for such Covered Application that prevents such Covered Application from functioning in substantial conformity with the As-Built Documentation pertaining thereto. 19. "Maintenance Modification" shall mean, with respect to any Covered Application, a computer software change integrated with such Covered Application during the term of the Agreement to correct any Errors therein, but that does not alter the functionality of such Covered Application or add new functions thereto. 20. "Monthly Status Report" is defined in Section 2.1(d) [Status Reports] of the Agreement. 21. "Object Code" shall mean computer programs assembled or compiled from Source Code in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering. 22. "Out of Scope Services" shall consist of any services provided under this Agreement that are outside the scope of those services specifically and expressly identified under, and provided pursuant to, Section 2,1 [Basic Support], Section 2.2 [Additional Support] or Section 2.3 [Enhancements] of the Agreement. 23. "Payment Date" shall mean July 1 of each year during the term of this Agreement. 24. "Site Specifications" is defined in Section 5.9 [System Modifications] of the Agreement. 25. "Software License Agreement" shall mean any software license agreement between Tiburon and the Client pursuant to which Tiburon has granted a limited license to use the Covered Applications in accordance with the terms and conditions thereof, as the same may be amended or otherwise modified from time to time. 26. "Source Code" shall mean computer programs written in higher-level programming languages, sometimes accompanied by English language comments. Source Code is intelligible to trained programmers and may be translated to Object Code for operation on computer equipment through the process of compiling. 27. "System" means the collective whole of all Products and Services to be purchased, developed, licensed, supplied, installed, configured, tested and implemented by Tiburon under this Agreement and includes, without limitation, the major CAD, MDS, MS, MMS, and AVL subsystems and related components and interfaces. Page 2 of 3 Exhibit 1 to Master Support Agreement 28. "System Environment" shall mean the configuration set forth on Exhibit 4 the Site Plan. 29. "Technical Support Coordinator" is defined in Section 5.11 [Technical Support Coordinators] of the Agreement. 30. "Third-Party Products" shall mean all software and hardware components of the System other than the Covered Applications. 31. "Tiburon" is defined in the preamble to the Agreement. 32. "Tiburon Confidential Information" is defined in Section 7.2 [Protection of Confidential and Proprietary Information] of the Agreement. 33. "Warranty Period" shall mean, with respect to any Covered Application, the warranty period for such Covered Application set forth in the Professional Services and Software License Agreement and incorporated herein by reference. Page 3 of 3 Exhibit 1 to Master Support Agreement EXHIBIT 2 To Tiburon Master Support Agreement COVERED APPLICATIONS This Exhibit is attached to, incorporated into and forms part of the Tiburon Master Support Agreement, dated , , 2009, between the Client and Tiburon (herein referred to as the "Agreement"). Capitalized terms used herein shall have the definitions set forth in the Agreement, unless otherwise defined herein. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. Tiburon will provide the Basic Support described in Section 2.1 [Basic Support] of the Agreement for the software applications identified in the table below. The annual fee for such support shall be as set forth in the table below. Such support will commence upon the expiration of any applicable Warranty Period as set forth in the table below. CLIENT #-M1270-09 Covered Make. Model. Serial Application Number of Authorized Server CAD/Ti Stratus ftServer Model: 3300-P3103R-ID-1 Serial #: 322249 Maintenance Period Period Start Date End Date 4 Mo 2/19/09 6/30/09 Annual Fee $10,884.00 CARS DW HP Proliant server Model: DL380-G3 Serial #: EB85KJNZ33 4 Mo 2/19/09 6/30/09 $ 504.00 GCT HP Proliant server Model: D530 SFF Serial #: USW4250JL7 4 Mo 2/19/09 6/30/09 $ 252.00 WebQuery HP Proliant server Model: DL360-G3 Serial #: EA51KYDZ34 4 Mo 2/19/09 6/30/09 Included 911 Mapping MDS MSS/Ti Stratus 4 Mo 4 Mo 4 Mo 4 Mo 2/19/09 2/19/09 2/19/09 2/19/09 6/30/09 6/30/09 6/30/09 6/30/09 Total $ 3,643.00 $ 6,903.00 $ 6,335.00 $ 5,640.00 $34,161.00 Authorized Site City of Carlsbad 2560 Orion Way Carlsbad, CA 92008 2009/2010 Page 1 of 1 Exhibit 2.v2 to Master Support Agreement EXHIBIT 3 To Tiburon Master Support Agreement THIRD-PARTY SUPPORT CONTRACTS This Exhibit is attached to, incorporated into and forms part of the Tiburon Master Support Agreement, dated , 200_, between the Client and Tiburon (herein referred to as the "Agreement"). Capitalized terms used herein shall have the definitions set forth in the Agreement, unless otherwise defined herein. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. Oracle HP Proliant servers Page 1 of 1 Exhibit 3 to Master Support Agreement EXHIBIT 4 To Tiburon Master Support Agreement SITE PLAN This Exhibit is attached to, incorporated into and forms part of the Tiburon Master Support Agreement, dated , 200_, between the Client and Tiburon (herein referred to as the "Agreement"). Capitalized terms used herein shall have the definitions set forth in the Agreement, unless otherwise defined herein. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. Carlsbad CAD Network CAD Server CARS/DW Server WebQuery Server NetClock Receiver Tap* Drtv* External Dilk Array CAD Workstations GCT Workstation Page 1 of 1 Exhibit 4 to Master Support Agreement