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CAG2021-427 - Original - Omiga Solutions, LLC - OCourt & Collect R Annual Maintenance - 04/01/2021
ApprovalOriginator:Department: Date Sent:Date Required: Authorized to Sign: Director or Designee Date of Council Approval: Grant? Yes No Type:Review/Signatures/RoutingComments: Date Routed to the City Clerk’s Office:Agreement InformationVendor Name:Category: Vendor Number:Sub-Category: Project Name: Project Details: Agreement Amount: Start Date: Basis for Selection of Contractor: Termination Date: Local Business? Yes No* Business License Verification: Yes In-Process Exempt (KCC 5.01.045) If meets requirements per KCC 3.70.100, please complete “Vendor Purchase-Local Exceptions” form on Cityspace. Notice required prior to disclosure? Yes No Contract Number: Agreement Routing Form For Approvals, Signatures and Records Management This form combines & replaces the Request for Mayor’s Signature and Contract Cover Sheet forms. Visit Documents.KentWA.gov to obtain copies of all agreementsadccW22373_1_20 Budget Account Number: Budget? Yes No Dir Asst: Sup/Mgr: Dir/Dep: rev. 20210513 FOR CITY OF KENT OFFICIAL USE ONLY (Optional) * Memo to Mayor must be attached CAG2021-427 License AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and Omiga Solutions, LLC Page 1 AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and Omiga Solutions, LLC This Software as a Service (SAAS) Agreement (Agreement) is between the CITY OF KENT (City or Customer), a Washington Municipal Corporation located at 220 Fourth Avenue South, Kent, WA 98032 and OMIGA SOLUTIONS, LLC (Vendor or Omiga Solutions), organized under the laws of the State of Delaware and authorized to do business in the State of Washington, with its principal place of business at 975 Carpenter Road NE, Suite 101, Lacey, WA 98516, effective on the last date signed below. This Agreement is to provide access to Vendor’s OCourt System and the ongoing maintenance of that OCourt System . 1. Grant of License to Access and Use Service. For the term of this Agreement including any renewals, Vendor hereby grants to City, including to all its Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty -free, and worldwide license to access and use the Vendor’s OCourt System (the "Service") for City’s non-commercial government operations as further described in the attached and incorporated Exhibit A, Scope of Work. City shall refrain from taking any steps such as reverse assembly or reverse compilation, to derive a source code equivalent to the Service as further described in Section 9.3. 2. Term. The term of this Agreement shall be 2 (two) years for a maximum contract term from April 1, 2021 through March 31, 2023. Any reference in this Agreement to “days” shall mean “calendar days” unless a different meaning is expressly stated. 3. Subscription Fees/Taxes. 3.1 Subscription Fee. Subscription fees and payment terms for the Service are set forth in the attached and incorporated Exhibit A. 3.2 Undisputed Fees. Undisputed invoices shall be due and payable within 30 days of invoice receipt. City shall notify Vendor in writing of any disputed amount within 15 business days of appropriate receipt of the applicable invoice. Portions of invoices that are subject to a good faith billing dispute shall not be considered delinquent for purposes of this Agreement. Disputed billings are subject to Section 16, Dispute Resolution. 3.3. Taxes. All contract amounts shall be inclusive of sales or other applicable taxes, and invoices shall include all tax obligations stated separately from the contract amounts. City shall pay all applicable sales, use, value added or similar taxes to Vendor and Vendor shall remit all such taxes, if imposed by local and/or state authorities on all software, and other taxable goods and services procured by the City under this Agreement. 4. System Availability and Support Services. The Service shall be available to City along with support services as described in the attached and incorporated Exhibit A. 5. Representation and Warranties. 5.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, and shall have obtained and maintain all licenses, permits and certifications required for such Party in connection with the performance of such Service; (b) the AGREEMENT FOR SOFTWARE AS A SERVICE Page 2 execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. 5.2 Vendor Warranties and Representations. Vendor represents and warrants that the Service will be performed in a professional and workmanlike manner, consistent with applicable industry standards and the corresponding specifications set forth in the applicable Statement of Work and Service Level commitments. a. Deliverables. Vendor represents and warrants that each deliverable shall meet and conform to its applicable specifications as provided herein following its acceptance and during the Term. Vendor also represents and warrants that the Service, in whole and in part, shall operate in accordance with the applicable approved configuration documentation, and this Agreement. b. Services. Vendor represents and warrants that (a) it shall perform the Service required pursuant to this Agreement in a professional manner, with high quality, (b) it shall give due priority to the performance of the Service, and (c) time shall be of the essence in connection with performance of the Service. c. Title Warranty and Warranty against Infringement. Vendor hereby warrants and represents that Vendor is the owner of the Service licensed hereunder or otherwise has the right to grant to the City, the licensed rights to Vendor’s Service through this Agreement without violating any rights of any third party worldwide. Vendor represents and warrants that (i) Vendor is not aware of any claim, investigation, litigation, action, suit or administrative or judicial proceeding pending or threatened based on claims that Vendor’s Service infringes or misappropriates any patents, copyrights, trade secrets or other intellectual property rights of any third party, and (ii) Vendor’s Service does not knowingly infringe upon or misappropriate any patents, copyrights, trade secrets or any other intellectual property rights of any third party. d. Maintenance Services Warranty. Vendor warrants that, in performing the Service under the Agreement, Vendor shall substantially and materially comply with the descriptions and representations as to the services, including performing capabilities, accuracy, completeness, characteristics, Statement of Work, configurations, standa rds, function and requirements, which appear in this Agreement. Errors or omissions committed by Vendor in the course of providing the Service shall be remedied as set forth herein. e. Warranty of Compliance with Applicable Law . Vendor warrants the Service shall comply with all applicable federal, state and local laws, regulations, codes and ordinances to which it is subject. Vendor warrants that, throughout the Term of this Agreement, including any renewals, the Service shall comply with changes to and new applicable federal, state, and local laws, regulations, codes, and ordinances to which it is subject. Vendor represents and warrants that it shall comply with all applicable local, state, and federal licensing, accreditation, and registration requirements and standards necessary in the performance of the Service. f. Warranty of Service. General Responsibilities. Vendor warrants the Service for the term of this Agreement. Vendor shall provide Warranty Services as described in this Agreement at no additional cost to correct deficiencies in the Service and to repair and maintain the Service in accordance with the specifications, subject to the Service Level Agreement. Vendor’s Warranty Service responsibilities shall include, but not b e limited to the following: i Vendor shall promptly and diligently perform the Service which is not in compliance with documentation/specifications, representations and warranties at no additional cost to the City; AGREEMENT FOR SOFTWARE AS A SERVICE Page 3 ii Maintain the Service in accordance with the Specifications terms of this Agreement and meet all availability and system performance service levels as specified in the Statement of Work and/or Service Level Agreement (SLA). In the event the Service requires failover activities, then Vendor shall be responsible for continuance of the S ervice and the City shall not be subject to additional costs unless otherwise specified in this Agreement. iii Promptly coordinate with the City all tasks related to correcting problems and deficiencies connected with the Service. iv Not disable any City software. v If Vendor and/or City reasonably determines that Vendor is unable to remedy such deficiencies within a reasonable notice period, Vendor or City may terminate the Agreement and Vendor shall refund to City the Fees previously paid by City to Vendor for the unused term of this Agreement and Fees for the time for which said deficiency(ies) existed. 6. City Data/Vendor Obligations. 6.1. Ownership. City owns all of the information and materials that it submits, uploads or transfers, or causes to be submitted, uploaded, or transferred to the Service (City’s Data). 6.2. Data Protection. Vendor shall maintain and handle all of City’s Data with commercially reasonable physical, electronic, and procedural safeguards to protect and preserve the confidentiality and security of City’s Data (including personal information) in accordance with applicable data protection legislative requirements and as further described in Vendor’s policies which should reflect the highest industry standards for privacy and security, which applicable policies are incorporated herein by reference. 6.3. Data Restrictions. Vendor shall restrict access to City Data to Vendor employees, affiliates' employees, or others who need to know that information to provide services to City. City Data shall be stored and hosted within the United States of America. Vendor will use City Data for the purposes described in this Ag reement. Vendor will not sell, license, transmit or disclose this information outside of Vendor’s business unless: (1) City expressly authorizes Vendor to do so; (2) it is necessary to allow Vendor’s Licensors to perform services under this Agreement); (3) in order to provide Vendor’s products or services to City; (4) otherwise as Vendor is required by law after written notice to City of such requirement . Notwithstanding the foregoing, Vendor is responsible for any disclosures of City Data by Vendor’s Licensors made contrary to the terms of this Agreement. 6.4 Data Backup. Vendor shall protect City’s data by having a backup system that includes running the Vendor’s Service on geographically disperse d data centers with extensive backup, data archive, and failover capabilities. Disaster recovery plan shall include: (1) Data backup procedures that create multiple backup copies of City’s data, in near real time, at the disk level; and (2) A multi - level backup strategy that includes disk-to-disk-to-tape data backup in which tape backups serve as a secondary level of backup, not as the primary disaster-recovery data source; or other data backup system providing at least the same or higher protection of City ’s Data in the event of a potential data loss. 7. Intellectual Property Ownership. Vendor (and its Licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Service, the Content, the Software, and in its Technology. This Agreement does not convey to City any rights of ownership in or to the Vendor’s Service, Technology, Software , or its Intellectual Property Rights AGREEMENT FOR SOFTWARE AS A SERVICE Page 4 owned by Vendor and its Licensors, where applicable. This Agreement does not contemplate custom development on behalf of the City of Kent of software or technology. 8. Non-Disclosure of Confidential Information. The Parties’ obligations regarding non- disclosure of Confidential Information is contained in the attached and incorporated Exhibit B. All Confidential Information is and shall remain the property of its owner to the extent consistent with applicable law. The disclosure of Confidential Information to the other party does not grant to it any express or implied right to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. 9. City Obligations. 9.1 Hardware Obligations. City shall be responsible for (a) obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and (b) paying all third-party access charges incurred while using the Service. 9.2 Anti-Virus Obligations. City will use commercially reasonable efforts to safeguard against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses") that may reasonably affect Vendor’s Service. 9.3 Restricted Uses. City will not: a. knowingly upload or distribute any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service, b. modify, disassemble, decompile or reverse engineer the Service or pre-release hardware devises or software disclosed, c. probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service, d. copy, reproduce, resell or commercially exploit the Service, e. without authority, access or use any other clients' or their users' data through the Service, f. maliciously reduce or impair the accessibility of the Service, g. reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed 10. Indemnification Obligations. 10.1 City Indemnification Obligations. Subject to Section 10.3 below, City shall defend, indemnify, and hold Vendor and its parent organizations, subsidiaries, Affiliates, officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a third party claim alleging that the use of City Data infringes the rights of, or has caused harm to, a third party; (ii) a third party claim alleging a breach of any of City’s representations and warranties; or (iii) a third party claim alleging City’s use of Confidential Information or Intellectual Property Rights of Vendor or its Licensors is in violation of this Agreement ; (iv) third party claim of injury or death to person or damage to property arising from City’s negligence. AGREEMENT FOR SOFTWARE AS A SERVICE Page 5 10.2. Vendor Indemnification Obligations. Subject to Section 10.3 below, Vendor shall defend, indemnify, and hold City and its elected officials, officers, employees, agents and attorneys harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a third party claim alleging that the Vendor Service, Content, Software, or Technology infringes or misappropriates the rights of, or has caused harm to, a third party; (ii) a third -party claim alleging a breach of any Vendor representations and warranties in this Agreement; (iii) a third -party claim alleging Vendor’s use of City Data is in violation of this Agreement; or (iv) a third party claim alleging a breach of Vendor’s confidentiality or data security obligations, that infringes the rights of, or has caused harm to, a third party, (v) third party claim of injury or death to person or damage to property arising from Vendor’s negligence. 10.3 As an express condition of the foregoing indemnification obligations, the parties hereby agree that: a. the indemnified party shall promptly notify the indemnifying party in writing fo r any claim for which indemnification is sought; b. the indemnified party shall cooperate with all reasonable requests of the indemnifying party (at the indemnifying party’s expense) in defending or settling such claim. c. the indemnifying party shall be allowed to control the defense and settlement of such claim; d. the indemnifying party may not settle any claim that includes an admission of liability, fault, negligence or wrongdoing on the part o f the indemnified party unless the indemnified party provides prior written consent, e. the indemnified party shall have the right, at its option and expense, to participate in the defense of any action, suit or proceeding relating to such a claim through counsel of its own choosing; f. each indemnified party will undertake commercially reasonable efforts to mitigate any loss or liability resulting from an indemnification claim related to or arising out of this Agreement. 11. Limitation of Liability 11.1. EXCEPT FOR CLAIMS ARISING FROM EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY AND SECURITY OBLIGATIONS, REPRESENTATIONS AND WARRANTIES, AND INTELLECTUAL PROPERTY INFRINGEMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY WITH RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE PARTY’S STATED INSURANCE LIABILITY CAP. 11.2. NEITHER PARTY WILL BE LIABLE FOR BREACH-OF-CONTRACT DAMAGES SUFFERED BY THE OTHER PARTY THAT ARE REMOTE OR SPECULATIVE, OR THAT COULD NOT HAVE REASONABLY BEEN FORESEEN ON ENTRY INTO THIS AGREEMENT. 11.3. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. 12. Insurance. Vendor shall maintain insurance that is sufficient to protect its business against all applicable risks, at a minimum as set forth in the attached and incorporated Exhibit C, "Insurance Requirements ." Vendor shall promptly provide City with certificates of insurance to evidence Vendor's continued compliance with Exhibit C. AGREEMENT FOR SOFTWARE AS A SERVICE Page 6 13. Termination of Agreement. 13.1 Termination for Convenience. Either party may terminate this Agreement without cause. In the event of such desire, the City may terminate upon giving the Vendor 30 days advance written notice of termination, and the Vendor upon giving the City 30 days advance written notice of termination. 13.2 Termination by City for Cause. In addition to any other rights granted to City in this Agreement or under law, City has the right to terminate this Agreement upon written notice due to: a. a material breach of a term, representation, or warranty under this Agreement (including a material breach under an Attachment, Addendum and/or Exhibit to this Agreement) by Vendor of any of its subcontractors or licensors of services if such material breach is not remedied within 30 days following receipt of written notice from City; or b. a third party’s claim that Vendor’s Service, Content, Data Infrastructure, Professional Services, Technology, Software, or any other services and products provided by Vendor or its subcontractors or Licensors or other third parties and the Intellectual Property Rights associated therewith, infringes upon such third party’s Intellectual Property Rights. c. City Council fails to appropriate funds for contract payments. d. Vendor files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within 60 days of the filing thereof.. 13.3 Termination by Vendor for Cause. In addition to any other rights granted to Vendor in this Agreement or under law, Vendor reserves the right, upon written notice to City, to terminate this Agreement due to: a. any undisputed amounts City owes that are delinquent greater than 30 days; or b. a material breach of the terms of this Agreement, other than a payment obligation, by City or its users if such breach is not remedied within 30 days following receipt of written notice of such breach from Vendor to City; or c. a third party’s claim that City’s Data, and/or Intellectual Property infringes upon such third party’s rights. 13.4 No Suspension of Service. Provided City continues to timely make all undisputed payments, Vendor warrants that during the term of this Agreement, Vendor will not withhold Service provided herein, for any reason, including but not limited to a dispute between the parties arising under this Agreement, except as may be specifically authorized herein. AGREEMENT FOR SOFTWARE AS A SERVICE Page 7 13.5 Effect of Termination. a. If City terminates for cause or Vendor terminates without cause, City will only be obligated to pay the amounts then due for services provided meeting Vendor’s contractual commitments as calculated up to the date of termination and, if applicable, City will be reimbursed a prorated amount of unused, prepaid fees. b. If Vendor terminates for cause that City does not dispute or if City terminates without cause and a balance is still due on City’s account, then City agrees that Vendor may bill City for such unpaid fees due up to the date of termination. c. In the event this Agreement terminates for any reason, Vendor shall provide the City a file of City’s Data in a format acceptable (and at no cost) to City within 30 days of the effective date of termination. City shall have 60 days following termination to notify Vendor if litigation, laws, regulations, or other lawful process requires Vendor retain City’s data on its Service beyond the termination of this Agreement. City wi ll thereafter promptly notify Vendor when such litigation, laws, regulations, or other lawful process no longer requires Vendor maintain the City’s data on its Service. Vendor may dispose of City’s data at Vendor’s expense as permitted by law 61 days after termination, if City provides no notice otherwise; or after City notifies Vendor there are no laws, regulations, litigation, etc. requiring further retention . Retained data is subject to the confidentiality provisions of the Agreement. 14. Remedies. Termination of this Agreement shall not affect any right of action of either party prior to the termination being affected. All remedies shall be cumulative and may be exercised concurrently, or separately, which shall not be deemed to constitute an electi on of any one remedy to the exclusion of any other. In addition to any other remedy provided for herein, or at law or equity, City shall have the right to recover from Vendor all damages reasonably caused by default of any representation or warranty. This paragraph shall not limit City’s right to pursue any other remedy available to it in law, at equity or pursuant to this Agreement. 15. Non-Discrimination. In the hiring of employees for the performance of work under this Agreement or any subcontract, the Vendor, its subcontractors, or any person acting on behalf of the Consultant or subcontractor shall not, by reason of race, religion, color, sex, age, sexua l orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. The Consultant shall execute the City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the Compliance Statement, all attached and incorporated as Exhibit D. 16. General Provisions 16.1 Governing Law and Venue. The Agreement will be governed by the laws of Washington and its choice of law rules. Vendor irrevocably consents to the exclusive personal jurisdiction and venue of the federal and state courts located in King County, Washington, with respect to any dispute arising out of or in connection with the Agreement and agrees not to commence or prosecute any action or proceeding arising out of or in connection with the Agreement other than in the aforementioned courts. 16.2. Dispute Resolution. The City and Vendor desire, if possible, to resolve disputes, controversies and claims (Disputes) arising out of this Agreement without litigation. To that end, upon written notification of dispute by a party to the other, each party shall appoint a knowledgeable, responsible management representative to meet and negotiate in good faith to resolve any Dispute arising under this Agreement. If the parties are unable to settle any Dispute, the exclusive means of resolving that Dispute shall only be by filing suit as provided for under Section 16.1, unless the parties agree in writing to an alternative dispute resolution process. AGREEMENT FOR SOFTWARE AS A SERVICE Page 8 16.3 Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provision will continue in full force without being impaired or invalidated in any way. The City and Vendor agree to replace any invalid provision with a vali d provision that most closely approximates the intent and economic effect of the invalid provision. 16.4. Nonwaiver. Any failure by either party to enforce strict performance of any provision of the Agreement will not constitute a waiver of the its right to subsequently enforce such provision or any other provision of the Agreement. 16.5 No Assignment. Either party may assign this Agreement and all of its rights and obligations hereunder as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets so long as said assignee accepts all of the respective Agreements rights and obligations of its predecessor as provided in this Agreement wit hout limitation. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. 16.6 Notices. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereaft er specified in writing. Either party may change its address by giving written notice of such change to the other party. 16.7 Legal Fees. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit either party’s right to indemnification under Section 10 of this Agreement. 16.8. Force Majeure. Neither party shall be liable to the other for breach due to delay or failure in performance resulting from acts of God, acts of war or of the public enemy, riots, pandemic, fire, flood, or other natural disaster or acts of government (“force majeure event”). Performance that is prevented or delayed due to a force majeure event shall not result in liability to the delayed party. Both parties represent to the other that at the time of signing this Agreement, they are able to perform as required and their performance will not be prevented, hindered, or delayed by the current COVID-19 pandemic, any existing state or national declarations of emergency, or any current social distancing restrictions or personal protective equipment requirements that may be required under federal, state, or local law in response to the current pandemic. If any future performance is prevented or delayed by a force majeure event, the party whose performance is prevented or delayed shall promptly notify the other party of the existence and nature of the force majeure event causing the prevention or delay in performance. Any excuse from liability shall be effective only to the extent and duration of the force majeure event causing the prevention or delay in performance and, provided, that the party prevented or delayed has not caused such event to occur and continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation. Notwithstanding other provisions of this section, the Vendor shall not be entitled to, and the City shall not be liable for, the payment of any part of the contract price during a force majeure event, or any costs, losses, expenses, damages, or delay costs incurred by the Vendor due to a force majeure event. Performance that is more costly due to a force majeure event is not included within the scope of this Force Majeure provision. AGREEMENT FOR SOFTWARE AS A SERVICE Page 9 If a force majeure event occurs, the City may direct the Vendor to restart any work or performance that may have ceased, to change the work, or to take other action to secure the work or the project site during the force majeure event. The cost to restart, change, or secure the work or project site arising from a direction by the City under this clause will be dealt with as a change order, except to the extent that the loss or damage has been caused or exacerbated by the failure of the Vendor to fulfill its obligations under this Agreement. Except as expressly contemplated by this section, all other costs will be borne by the Vendor. 16.9 Independent Contractor. City and Vendor intend that an independent Contractor relationship be created with this Agreement . Vendor shall not be considered an agent or employee of City for any purpose and the employees of Vendor are not entitled to any of the benefits that City provides for its employees. Nor shall this Agreement be evidence of a joint venture between Vendor and City. 16.10 Problem Notification. Each party will promptly notify the other in writing of any events or circumstances that will affect the performance of its obligations under this Agreement including the delivery of any deliverable or delay in completion of a ny of its obligations. Vendor shall notify City in writing of all material defects in the Service, whether discovered by other parties or by Vendor within five (5) business days of their discovery and fix or replace the effected software within a commercially reasonable time. A defect is considered material if it has the potential to delay or inhibit the primary functionality of the Service or if said defect has the potential to corrupt City data. 16.11 Entire Agreement/Modification. This Agreement, together with all exhibits comprise the entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. This Agreement may be amended, modified , or added to only by written instrument properly signed by both parties hereto. 16.12 Public Records Act. The Vendor acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, emails, and other records prepared or gathered by the Vendor in its performance of this Agreement may be subject to public review and disclosure, even if those records are not produced to or possessed by the City of Kent. As such, the Vendor agrees to cooperate fully with the City in satisfying the City’s duties and obligations under the Public Records Act. 16.13 City Business License Required. Prior to commencing the Service provided for under this Agreement, Vendor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. / / / / / / / / / / / / / / AGREEMENT FOR SOFTWARE AS A SERVICE Page 10 16.14 Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed to have applied. VENDOR: OMIGA SOLUTIONS, LLC By: Print Name: Mark W. Meyer Its: President DATE: September 1, 2021 CITY: CITY OF KENT By: Print Name: _________________ Its: ________ DATE: _________ NOTICES TO BE SENT TO: Mark W Meyer Omiga Solutions, LLC 974 Carpenter Road NE Suite 101 Lacey, WA 98516 360-915-7017 (telephone) NOTICES TO BE SENT TO: Information Technology Department City of Kent 220 Fourth Avenue South Kent, WA 98032 (253) 856-4600 (telephone) (253) 856-4700 (facsimile) ATTEST: Kent City Clerk Mike Carrington IT Director 09/07/2021 EXHIBIT A – ORIGINAL VERSION PROVIDED BY VENDOR SERVICE LEVEL AGREEMENT (“SLA”) AND SUPPORT SERVICES 1. Description of Services 1.1. Introduction Omiga Solutions is providing its proprietary OCourt system and solution(s) to the Customer. OCourt is an online web-based business application that streamlines the court processes and integrates with Washington State’s AOC JIS system in real time. OCourt has multiple features including Schedule R, E-Forms and E-Signature. Electronic documents created in OCourt can be concurrently viewed and edited in real time in a court room and a defendant located off site in a jail facility. OCourt supports a number of e-signature technologies including touch, physical signature pad and stored signatures online. OCourt offers real time synchronization to JIS from electronic forms, with built in analytics for Administrators, Clerks, Judges, Prosecutors and Public Defense. There is no similar court product offering for Courts of Lower Jurisdiction in the state of Washington. 1.2. Supplemental Modules Omiga Solutions has Modules; OSummons, E-Hearing, E-Filing Lobby Display, Collect R, VRV, and nCourt API, for a data integration point between collection venders, individual court customers and the WA State Administrative Office for the Courts (AOC) Judicial Information System (JIS). These Modules directly update each individual court’s receipting system within JIS without relying on the courts to manually enter the information. These Modules reduce repetitive and error-prone tasks associated with manual data-entry related to the collections process. 1.3. Specific Services Omiga Solutions will: a) Ensure OCourt-specific security processes and best-practices are followed b) Notify Customer of any apparent anomalies in data-transfer c) Communicate future enhancements, modifications, or outages to all relevant parties d) Maintain network and identity-related security protocols e) Enforce proper deployment and maximum server up-time f) Establish and enforce proper application server deployment techniques g) 24x7 maintenance of the server environment h) Maintain an environment scalable to meet current & future customer expectations 2. Problem Management 2.1. General If at any time OCourt users experience a lapse in OCourt services, as defined in this SLA, they should immediately notify their managers, noting specific items to be addressed. 2.2. System and Contract Support Escalation Contact List Please use the following escalated contacts for Operational System or Contract Support issues. Please refer to Section 3.0 to confirm Service Performance standards and metrics. OCourt System Issue Escalation Contacts OCourt Contract Issue Escalation Contacts 3. Service Performance 3.1. Infrastructure Team Availability Omiga Solutions Infrastructure Team hours of operation will be established and managed under mutual agreement by Omiga Solutions and Customer. Omiga Solutions proposes the following availability: Services Description System Support Hours of operation 7:00 AM to 5:00 PM Monday to Friday PST (Except for Federal and State holidays). Regularly scheduled maintenance frequency Performed on 2nd/3rd Saturday of the month. Email notices are sent to all users. Issue Response Time 4 Hours High Priority Issue Resolution Time 2 Business Days Medium and Low Priority Resolution Time 1 Week 3.2. Operational Expectations Server Backups Frequency Regularly scheduled backups Daily Log Truncation Monthly Retention of collection data Continuous Step 1 System Support E-mail: Courts@codesmartLLCcom Step 2 Robert Patterson Product Manager P: 360-915-7017 Robert.Patterson@codesmartLLC com Step 3 Mark Meyer President M: 425-444-6174 O: 360-915-7017 Mark.Meyer@omigasolutions.com 2 Mark Meyer President M: 425-444-6174 O: 360-915-7017 Mark.Meyer@omigasolutions.com 1 Robert Patterson Product Manager P: 360-915-7017 Robert.Patterson@codesmartLLCcom 3.3. System Availability The OCourt Administrator(s) will work to ensure the following: • All case information that is transmitted between Omiga Solutions’ servers, the customer’s servers, and AOC’s servers, are secured via HTTPS. • All login passwords will be restricted to a sufficient level of complexity so as to prevent brute-force hack attempts. • Omiga Solutions will not store actual user passwords unless customer requires it. • Omiga Solutions will abide by the terms of the overall agreement governing auditing and logging of customer data interactions as specified by the Administrative Office for the Courts (AOC). • Logs will be truncated every 1 month in order to minimize the possibility of significant data-loss during security breech. • Outages shall be scheduled with at least one-week advanced notification to all customers and partners. • All outages or un-expected problems arising as a result of OCourt software will be assigned a dedicated response team within a 48-hour period. • The data-retention period for OCourt will not exceed 7 years. (Customer can request less if needed.) • Omiga Solutions will provide individual records data to Court Customer upon request. Omiga Solutions will not retain the document data beyond 180 days. • Regularly scheduled backups will occur every 24 -hours with hourly backups of the data within the database. • Omiga Solutions will maintain the ability to recover from a hard-drive failure or master Hyper-V host operating system failure within a 24-hour period. 3.4. System Operational Limitations While always endeavoring to resolve any system failures, there are conditions that may be beyond Omiga Solutions’ ability to address. Examples include, but are not limited to: • AOC JIS availability (OCourt will not function properly without JIS functionality) • Customer network outage • Customer firewall or browser issue that is specific to their own IT environment • Upgrades to Judicial Access Browser System (JABS) that causes a problem or outage • SSL certificate(s) expiration • Third party back-up power failure • Restricted access to JIS • JIS down-time (impacts data transmission). Omiga Solutions’ commitments, per this SLA, are limited to those basic services, and designated optional services for Omiga Solutions sup plied or operated systems. Outages within the customer’s own systems, and/or the customer’s network provider’s systems over a period of several days do not fall within the scope of this SLA nor will Omiga Solutions assume responsibility for them. 3.5. OCourt - File Processing OCourt Overview: The OCourt system is considered a “real-time” system in that users expect to see data in JIS after they’ve entered it into the system. However, there is also a regularly scheduled [automated] process that kicks off every 24 hours, to migrate the customer’s JIS data into our queue for synchronization and error notification. There is another “near real -time” mechanism that is initiated by user actions such as performing a case submittal action or typing in a large number of cases to associate with a hearing. User Authorization and Authentication: A username/password for OCourt can be established by registering for the site, and then approved by a Court Administrator or Omiga Solutions System Administrator. Users that are approved can then be associated with specific roles that will allow them to review various functions that have been associated with their assigned “role” in the system. Handling Dependency Changes: In the event that Omiga Solutions’ OCourt system is operating normally, but there is: 1. An anomaly present in the JIS and/or document storage data, 2. A JIS screen has been modified and the customer has failed to notify Omiga Solutions, 3. A Document Storage API has been updated Omiga Solutions may reach out to the customer in order to facilitate a resolution. In practice, this type of anomaly rarely occurs. However, if it should occur, Omiga Solutions will be able to respond within 72 hours of notification regarding any small AOC scree n changes, document storage API updates, or data anomalies. If the modification is severe enough (for instance AOC replaces JIS with a new Case Management System and doesn’t tell anyone about it) Omiga Solutions may not be able to bring the system back-online within a 72-hour period. Therefore, it is necessary for AOC and the customer to keep Omiga Solutions informed of known upcoming changes and upgrades. External Doc Storage Sync Operations (Applicable to 3rd-party externally hosted solutions only!): For certain customers, Omiga Solutions will support software that is responsible for downloading external data concerning electronic documents associated with a case(s). Security: 3rd-party vendor data (i.e. Laser Fiche, SharePoint, Sire, etc.) should be ma de available to Omiga Solutions in a secure fashion, but Omiga Solutions is not responsible for enforcing agreements between its own Courts customers and their 3rd-party partner vendors. Therefore, Omiga Solutions will download data related to the OCourt s ystem from Court customer 3rd-party vendors even if it is provided to us in an inherently insecure fashion. It is the customer’s responsibility to ensure that their 3rd-party vendors are working in a secure fashion with Omiga Solutions. Basically, Omiga Solutions does not control or have leverage over any Court customer’s own vendors. 3rd-party Data Transmission: We will notify our customers in the event that we notice odd patterns in data -transmission such as (a) no data for unusual periods of time, (b) bad data repeatedly being transmitted, (c) too much data being transmitted. Ultimately, if the customer wishes for Omiga Solutions to work collaboratively with the 3rd-party to resolve the problem, we will do so on a case- by-case basis. Customer Network, Document Storage Provider, or AOC System Anomalies: There are many points of failure in the overall data pipeline for the OCourt system. Omiga Solutions often plays the role of working to resolve any breakdowns in the pipeline. However, there are times when Omiga Solutions would have absolutely no knowledge of such a breakdown. The following are examples that have occurred. (a) The customer has a network outage. (b) The customer has a firewall or browser issue that is specific to their IT environment. (c) AOC has made an upgrade to JABS which causes a problem or outage. (d) AOC has forgotten to update their SSL certificates and the SSL certificates have expired. (e) AOC experiences a network outage. Since there are many points of failure, Omiga Solutions’ agreed-upon metrics that are defined in this SLA document may only be applied at the point that we are the source of the problem. Outages within AOC, the customer’s own systems, and/or the customer’s network provider’s systems over a period of several days do not fall within the scope of this SLA nor does Omiga Solutions assume responsibility for them. Document Storage Synchronization Operations (Applicable to locally installed software only!): In the case where the document-storage resides internal to the customer, Omiga Solutions will provide the customer with a Windows executable program. The program is made up of more than 3 files. One file is intended to be configured according to the unique requirements of the customer. This file ends with a *.config file extension. The Windows executable that Omiga Solutions provides to the customer will, generally speaking, look for files located in a document storage solution, determine if they are relevant case-related files, transmit them over HTTPS to Omiga Solu tions’ e-Docs servers, and then disconnect from the customer’s document storage system. For this reason, it is important that the customer not expect that the data displayed in Omiga Solutions’ e-Docs manager will be automatically synchronized with the customer’s document-storage solution. In order to update the case-documents when making a change to your document- management data, you will need to “refresh” the Omiga Solutions e-Docs external documents list. The executable currently depends on Microsoft .NET Framework 4.5 in order to execute and perform its tasks. This may change in the future. The executable transmits the customer’s ticket data over port 443 which is a standard SSL port. Other than allowing outbound traffic on port 443 and ensuring that t he user-account running the executable has the appropriate permissions to read and delete files in the configured processing path of the program, there is no other operational requirement of the software. Case-File Processing Executable Maintenance (Applicable to locally installed software only!): Omiga Solutions may periodically update the executable supplied to any Court customer as updates and enhancements are developed. Given that this executable is responsible for reading the appropriate document data, and also updating it, there may be updates or enhancements required over time. The maintenance fee associated with any contract related to the OCourt system is partially used to ensure this component stays up to date with technology changes over time. If any Court customer wishes to disable or rebuild the server that the OCourt executable is running on, they merely need to copy all of the files associated with the OCourt executable… and place them into a directory on the new server. There is no uninstall process, re- configuration process, or other Windows artifacts in -place that need to be addressed. If any Court customer needs a new copy of the OCourt executable, Omiga Solutions will provide one for them at no charge. Ticket Processing Bandwidth: Omiga Solutions does not expect to have any difficulty processing up to the maximum allowable number of documents that our pre-screened customers are able to accommodate As the exact processing volumes and capabilities of hardware, software, a nd other factors adjust over time… so will the exact contents of this portion of the Service Level Agreement. Omiga Solutions will be able to provide reports within a 48-hour period of exact case- volume processing and anomalies per customer. 3.6. OCourt Security The OCourt software is managed by Omiga Solutions’ Network Support Team and is responsible for the physical security, data redundancy, and other aspects of backups and power supply necessary to maintain uptimes that meet the definition of this Service Level Agreement. Omiga Solutions is responsible for the SSL certificate used to secure individual customer logins via the web-based interface as well as encryption of the ticketing data within the SQL Server storage environment. Omiga Solutions is also responsible for the verification of regular data-backups and redundancy that is necessary to avoid any data loss. However, in the case of this system… any lost data may be recovered from multiple sources outside of Omiga Solutions’ control. (Such as Washington State AOC or DES or the customer.) Omiga Solutions is also responsible for verifying the secure transmission of the case data associated with the OCourt system to the customer’s servers and to AOC’s JIS. Omiga Solutions will notify the Court Customer within 48 hours in the event of any known security breach or compromise to the integrity of the data. If Omiga Solutions determines that a username or password of a valid user for Court Customer was utilized during the security breach, we will immediately deactivate the account and change the password prior to notifying the Court Customer, in order to ensure that no further security breaches occur. 3.7. Bug Reporting/Tracking Omiga Solutions is responsible for tracking all bugs/problems associated with the OCourt software or general processing of OCourt-related tickets from the customer’s 3rd-party ticket vendor as needed. Omiga Solutions currently uses a system known as “AdminiTrack” to facilitate the reporting of bugs. Bug reports may be generated upon request within a 48 -hour period. 3.8. System Outage/Security Reporting Due to the complexity and number of systems supporting OCourt processing system, it is difficult to centralize a reporting mechanism to identify all system outages, security-related issues, or other concerns over an extended period of time. However, Omiga Solutions will provide a regular security bulletin for issues within the Omiga Solutions server and OCourt environment upon request. Omiga Solutions cannot provide information about the system functionality or security of non-Omiga Solutions server environments. 3.9. Record Transaction Processing Issues: In the event, that transaction processing does not occur correctly, customers are notified in one of 2 ways. (1) via email if it is a long-running transaction process. (2) Via user-interface if it is a “real-time” or “near real-time” transaction. Additionally, the OCourt Systems Administrator(s) will also be notified. It is possible to include other members from various roles in these error notifications upon request. Error emails are filtered by the Customer identifier because there could be more than one Court organization using the same system. A configurable customer email address can be associated with each Customer id. In this case, a “customer identifier” is the unique information that identifies customers such as City of Tacoma, City of Fife, City of Lakewood, etc. 4. Cost of Services 4.1. Annual Maintenance Services The scope of Omiga Solutions ’s OCourt system services to Customer shall be performed for a not-to-exceed annual fee(s) as indicated below for the licensed solutions the Customer has chosen. The service fee covers the maintenance and on-going support of the below chosen solutions. The Annual Maintenance fee payment will be invoiced to the customer on the anniversary date of execution of this agreement each year this agreement is in effect. Omiga Solutions or the Customer may terminate this agreement at the end of any annual period for any reason with 30 days notice. At the end of the Initial Term, the service fee will be reviewed by Omiga Solutions to reflect any substantial change in the caseload of the court. Omiga Solutions will make available to the Customer, any additional Module(s) released. Implementation and use of additional Module(s) may require an additional service fee. The annual maintenance fee does not include feature enhancements or future impr ovements. It is intended solely to cover the services in this agreement and to ensure proper security in accordance with AOC guidelines, industry best-practices, and normal operating procedures. The Maintenance Fee will cover any changes as needed to any current form(s) in use by the OCourt program as drive from Legislative Changes for Washington State. Any new forms to be created because of Washington State Legislative decisions will be considered enhancement to the electronic document system and the cost of developing those forms will be at $500.00 which will be equally shared among the courts actively using the E -Doc program. However, individual customer obligations for Legislative New Forms will not exceed $50.00. After the Initial Term of this agreement, the actual number of transactions processed through OCourt for Customer during the year will be used to calculate the maintenance fee and will be reflected in the next version of this service contract. A transaction is a case synchronized from JIS into the OCourt scheduler system. 4.2. Annual Maintenance Fee Item Annual Fee Note ☒ OCourt $6,000 ☐ Lobby display No charge ☒ Collect R $1,200 Auto Receipting into JIS; files from Collection Vendor ☐ nCourt API/Batch N/A ☐ VRV N/A ☐ N to Y N/A This module requires VRV licensing ☐ Public Access (PAM) N/A ☐ e-Filing N/A ☐ e-Hearing N/A ☐ OSummons N/A Jury Management Collection R and VRV fee(s) are based on the annual number of Citations processed. There are three different levels of citation processing: Light under 11,000 citations $1,000, Medium between 11,000 and 28,000 citation $1,200, and Heavy over 28,000 citation $2,000. 5. Service Provider and Customer Responsibilities Role Responsibilities Omiga Solutions • Installs, updates, and configures the physical Electronic Documents, Schedule R, and synchronization with JIS and Collection modules. (if a product) • Ensures Electronic Documents, Schedule R, collection modules and synchronization-specific security processes and best-practices are followed • Notifies all partners of any apparent anomalies in data -transfer or ongoing operations • Communicates future enhancements, modifications, or outages to all relevant parties • Maintains data-retention policies Customer • Responsible for correcting data-entry errors • Provide all digital data-entry including hearing information, e-Doc data, required e-Document case files, and/or other relevant information • Responsible for syncing the hearing or other data periodically from JIS. (Until a real-time data synchronization mechanism can be built and agreed to by AOC.) • Responsible for following system business practices to ensure long -term operational needs • Responsible for accepting valid users, elevating user permissions, and generally removing users that are no longer part of the Court • Responsible for collaborating with Omiga Solutions system administrators to identify features, functionality, or problems that need to be addressed • Responsible for ensuring proper e-Document signatures and association with relevant hearing and case-types 7. Periodic Review Process 7.1. Overview This SLA will be reviewed at a minimum once per contract year. Contents of this document may be amended as required, provided mutual agreement is obtained and communicated to all affected parties. The Document Owner will incorporate all subsequent revisions and obtain mutual agreements / approvals as required. a) Document Owner: Mark Meyer b) Review Period: Annually or as requested c) Previous Review Date: Has not Happened New d) Next Review Date: March 1st, 2021 7.2. Changes This SLA is a dynamic document and will be periodically reviewed and changed when the following events occur: a) The environment has changed. b) The customer's expectations and/or needs have changed. c) Workloads have changed. (Including processing volumes and capabilities) d) Better metrics, measurement tools and processes have evolved. 8. Glossary of Terms • AOC – Administrative Office of the Courts. • APS –Automated Payment System • OCourt- Omiga Solutions’ proprietary online web-based business application that streamlines the court processes and integrates with Washington State’s AOC JIS system in real time. OCourt has multiple features including case scheduling, E -Forms, Archiving, E- Signature and Lobby display. • EA Group – Enterprise Architecture Group: A governing body or group within the AOC, responsible for the oversight and general design of Information Technology as it relates to the agency. • Executive Management – The ISD Director or other management entity responsible for overseeing the agency Information Services budget and project selection. • ISD – Information Services Division: A division within the AOC responsible for the maintenance and development of Information Technology Software and Hardware. • JIS - Judicial Information Systems • PMO – Project Management Office; the organization responsible for the oversight and direct management of projects within the AOC. • SSL - Secure Sockets Layer; a protocol designed to provide secure communications over the Internet using asymmetric key encryption. EXHIBIT B NON-DISCLOSURE OF CONFIDENTIAL INFORMATION 1. Scope of Confidentiality Obligation in a SAAS Agreement. 1.1 Limitations. The Parties recognize that in a SAAS Agreement, the City is placing its information, including Confidential Information, on the Vendor’s hosted software application. In providing this hosted service, the Vendor is not disclosing or providing City with its confidential information such as its source code or other proprietary or intellectual property technology. City therefore cannot modify, reverse engineer or otherwise decompile Vendor’s technology and City has committed to not doing so in this Agreement. Thus, this Addendum describes Vendor’s obligations with respect to City’s confidential information provided to Vendor. 2. Definition of Confidential Information and Exclusions. 2.1 "Confidential Information" means non-public information on Vendor’s SAAS that City designates as being confidential or which, under the circumstances surrounding disclosure , Vendor ought to treat as confidential , including but not limited to information in tangible or intangible form relating to and/or including City data, computer programs, code, algorithms, formulas, processes, inventions, schematics and other technical, business , financial and product development plans, forecasts, strategies and proprietary or intellectual property whether or not it is owned by City and information received from others that City is obligated to treat as confidential. Except as otherwise indicated in this Agreement, the term “Vendor” also includes all its Affiliates. An “Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, controls, are controlled by, or are under common control with a party. 2.2 Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Vendor’s breach of any obligation owed City; (ii) became known to Vendor prior to City’s disclosure of such information to Vendor pursuant to the terms of this Agreement; (iii) became known to Vendor from a source other than City other than by the breach of an obligation of confidentiality owed to City; (iv) is independently developed by Vendor; or (v) is not confidential as a matter of law. 3. Obligations Regarding Confidential Information. 3.1 Except as otherwise provided herein, Vendor shall: a. Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than prevailing standard of reasonable care in the Vendor’s industry, to keep confidential the Confidential Information of the City; b. Refrain from disclosing, reproducing, summarizing and/or distributing City’s Confidential Information except in pursuance of Vendor’s business relationship with City, or only as otherwise provided hereunder; and c. Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by City to Vendor under the terms of this Agreement. 3.2 Notwithstanding anything to the contrary herein, City and Vendor will disclose Confidential Information in accordance with judicial action, federal or state public disclosure requirements, state or federal regulations, or other governmental order or requir ement of law. In the context of public records requests, City will give the Vendor reasonable notice prior to Vendor’s records consistent with City’s rules to allow Vendor a reasonable opportunity to seek injunctive or other applicable judicial relief preventing such disclosure. 3.3 The Vendor may disclose Confidential Information only to Vendor’s employees and consultants on a need-to-know basis. The Vendor will have executed or shall execute appropriate written agreements with third parties sufficient to enable Vendor to enforce all the provisions of this Agreement. 3.4 Vendor shall notify the City promptly and without undue delay upon discovery of any unauthorized use or disclosure of Confidential Information as defined by this Agreement. Vendor will cooperate with City in helping City regain possession of its Confidential Information and prevent its further unauthorized use or disclosure. EXHIBIT C INSURANCE REQUIREMENTS FOR CONSULTANT SERVICES AGREEMENTS Insurance The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Consultant shall obtain insurance of the types described below: 1. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. The City shall be named as an Additional Insured under the Consultant’s Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 2. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 3. Professional Liability (E&O) insurance appropriate to the Consultant’s profession. B. Minimum Amounts of Insurance Consultant shall maintain the following insurance limits: 1. Commercial General Liability insurance shall be written with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate. 2. Professional Liability insurance shall be written with limits no less than 1,000,000 per claim. EXHIBIT C (Continued) C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: 1. The Consultant’s insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant’s insurance and shall not contribute with it. 2. The Consultant’s insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the Consultant and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Consultant’s Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer’s liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. F. Subcontractors Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Consultant. The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (201 /0 ) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNEDAUTOS AUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Certificate Of Insurance REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). TechInsurance 30 N. LaSalle, 25th Floor, Chicago, IL 60602 (800) 668-7020 877-826-9067 Omiga Solutions LLC 975 Carpenter Rd NE, Lacey, WA, 98516 The Hartford 30104 Hartford Fire Insurance Company 19682 The Hartford 30104 46SBMAM4FTCCYes 1,000,000 10,000 7/8/2022 1,000,000 1,000,0007/8/2021 2,000,000 2,000,000 C 1,000,000 Yes 46SBMAM4FTC 7/8/2021 7/8/2022 C Yes 46SBMAM4FTC 7/8/2022 1,000,000 1,000,000 A Fidelity Bond $1,000,000 83TE0394871 46BDDIH2408 2/6/2021 2/6/2022 Each Occurrence 7/8/2021BProfessional Liability (Errors and Omissions)7/8/2022 Occurrence/Aggregate $1,000,000 / $1,000,000 The City of Kent is named as Additional Insured as their interests may appear in regards to General Liability as required by written contract. The City of Kent 220 Fourth Ave. S. Kent, WA 98032 7/9/2021 11626893 Omiga Solutions LLC 7/9/2021 2:53:08 PM Policy Change: Business Owner’s Policy Form SC 00 06 10 18 Page 1 of 2 Process Date:07/16/2021 © 2018, The Hartford Policy Expiration Date:07/08/2022 (May include copyrighted material of Insurance Services Office, Inc., with its permission) Policy Number:46 SBM AM4FTC Policy Period:07/08/2021 to 07/08/2022 Named Insured and Mailing Address: OMIGA SOLUTIONS LLC, 975 CARPENTER RD NE, LACEY,WA 98516-5560 Policy Change Number:1 Policy Change Effective Date:07/15/2021, Effective hour is the same as stated in the Declarations Page of the Policy. Insurer: Hartford Underwriters Insurance Company, a property and casualty company of The Hartford One Hartford Plaza, Hartford, CT 06155 Name of Agent/Broker: BIN INSURANCE HOLDINGS LLC/PHS 30 N LA SALLE ST STE 2500 CHICAGO,IL 60602 Code:46505301 Coverage Parts Affected: Liability Common This is NOT a bill.However,any changes in your premium will be reflected in your next billing statement.You will receive a separate bill from The Hartford.If you are enrolled in repetitive EFT draws from your bank account, changes in premium will change future draw amounts. As a result of the changes described herein, there is an additional premium in the amount of:$26 *Price is subject to fees and surcharges Countersigned by:07/16/2021 Authorized Representative Date Policy Change: Business Owner’s Policy Form SC 00 06 10 18 Page 2 of 2 Process Date:07/16/2021 © 2018, The Hartford Policy Expiration Date:07/08/2022 (May include copyrighted material of Insurance Services Office, Inc., with its permission) The following Additional Insured has been added as an Additional Insured - Owners, Lessees, or Contractors - Ongoing Operations - Scheduled Person or Organization. Additional Insured Name Location Description of Ongoing Operations The City of Kent RE: 975 Carpenter Rd NE, Lacey WA 98516 RE: 975 Carpenter Rd NE, Lacey WA 98516 Policy is amended to add the following Endorsement Forms reflecting the changes made to your policy. FORM NUMBER FORM NAME COVERAGE PART SC 00 06 10 18 POLICY CHANGE Common SL 30 24 10 18 ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - ONGOING OPERATION - SCHEDULED PERSON OR ORGANIZATION Liability Premium associated with this Policy Change has pro rata factor 0.980. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULL Y. Form SL 30 24 10 18 Page 1 of 1 Process Date:07/16/2021 © 2018, The Hartford Policy Expiration Date:07/08/2022 (May include copyrighted material of Insurance Services Office, Inc., with its permission) ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS – ONGOING OPERATIONS – SCHEDULED PERSON OR ORGANIZATION POLICY NUMBER:46 SBM AM4FTC This endorsement modifies insurance provided under the following: BUSINESS LIABILITY COVERAGE FORM Except as otherwise stated in this endorsement, the terms and conditions of the Policy apply. A.Section C. WHO IS AN INSURED is amended to include the following as an additional insured: The person(s)or organization(s)shown in the Declarations,but only with respect to liability for "bodily injury", "property damage"or "personal and advertising injury"caused,in whole or in part,by the performance of your ongoing operations for the additional insured(s) at the location(s) designated in the Declarations. However: (1)The insurance afforded to such additional insured only applies to the extent permitted by law; and (2)If coverage provided to the additional insured is required by a contract,agreement,or permit the insurance afforded to such additional insured will not be broader than that which you are required by the contract, agreement, or permit to provide for such additional insured. B.With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: (1)All work,including materials,parts or equipment furnished in connection with such work,on the project (other than service,maintenance or repairs)to be performed by or on behalf of the additional insured(s)at the location of the covered operations has been completed; or (2)That portion of "your work"out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. EXHIBIT D CITY OF KENT NON-DISCRIMINATION POLICY AND FORMS DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City’s equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City’s sole determination regarding suspension or termination for all or part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed by me, the Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. By signing below, I agree to fulfill the five requirements referenced above. By: __________________________________________ For: Omiga Solutions, LLC ________________________ Title: President _________________________________ Date: September 1, 2021 _________________________ CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City’s nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City’s equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. I, the undersigned, a duly represented agent of Omiga Solutions, LLC, hereby acknowledge and declare that the before-mentioned company is the prime contractor for the Agreement known as Omiga Solutions and Ocourt System that was entered into on August 18, 2021, between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. By: __________________________________________ For: _________________________________________ Title: ________________________________________ Date:_________________________________________