2016-17 Emphasys Software - Treasury ReportMEMORANDUM
TO: Frank J. Spevacek, City Manager
FROM: Lisa Chaudhry, Administrative Technician
DATE: n2=
RE: Execution of Software License & Service Agreement with Emphasys
Software.
Attached for your signature is an agreement with Emphasys Software for a
investment portfolio management system known as Sympro Treasury Managerne
Software. I
Please sign the attached agreement(s) and return to the City Clerk for processing an
distribution. I
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08/04/1& Approved by Pam Nieto
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2017 ("Initial Term"). This Agreement may be extended for two additional 1 -year terms upon
mutual agreement by both parties C'Extended Term")-
4�O COORDINATION OF WORK
4.1 Representative of Consultant. The following priincipals of Consultant ("Principals")
are hereb�� nated as btimiv--t r*ie��Consultaht authorized to act
in its behalf with respect to the Services specified herein and make all decisions in connection
therewith -
a. Carlton Youtsv
E-mail: Cyoungeemphasys-software.com
b. Joe DeMarco
E-mail: JdemarcoQenit)hasys-software com
E-mail-
It is expressly understood that the experience, knowledge, capability, and reputation
of the foregoing Principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing Principals shall be responsible during the to of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
Services hereunder, For purposes of this Agreement, the foregoing;Principals may not be changed
by Consultant and no other personnel may be assigned to perform the Services required hereunder
without the express written approval of City,
4.2 'Contract Officer. The "Contract Officer" shall be the City's Director of Finance or
such other person as may be, designated in writing by the City Manager of City. It shall be
Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of
the performance of the Services, and Consultant shall refer any decisions, that must be made by
City to the Contract Officer, Unless otherwise specified herein, any approval of City required
hereunder shall inean the approval of the Contract Officer. The Contract Officer shall have
authority to sign all documents on behalf of City required hereunder to carry out the terms of this
Agreement.
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Coll selit Of clity.
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a result of Consultant's failure to promptly pay to City any reimbursement or indemnification
arising under this Section.
4Identity of Persons Performina Work, Consultant represents that it employs or will
employ at its own expense all personnel required for the satisfactory performance of any and all
of the Services set forth herein. Consultant represents that the Services required herein will be
performed by Consultant or under its direct supervision, and that all personnel engaged in such
work shall be fully qualified and shall be authorized and permitted under applicable State and local
law to perform such tasks and services.
4.6 City Cooveration. City shall provide Consultant with any plans, publications, reports,
statistics, records, or other data or information pertinent to the Services to be performed hereunder
which are reasonably available to Consultant only from or through action by City.
5.0 INSURANCE
5.1 Insurance. Prior to the beginning of any Services under this Agreement and
throughout the duration of the terra of this Agreement, Consultant shall procure and maintain, at
its sole cost and expense, and submit concurrently with its execution of this Agreement, policies
of insurance as set forth in Exhibit E (the "Insurance Requirements") which is incorporated herein
by this reference and expressly rnade a part hereof.
6.0 INDEMNIFICATION.
6r1 Indemnification. To the fullest extent permitted by law, Consultant shall indemnify,
protect, defend, and hold harmless City and any and all of its officers, employees, agents, and
volunteers as set forth in Exhibit F ("Indemnification") which is incorporated herein by this
reference and expressly made a part hereof.
7.0 RE, CORDS AND REPORTS.
7.1 Re ' Dorts. Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning Consultant's performance of the Services required by this Agreement as the
Contract Officer shall require. Consultant hereby acknowledges that City is greatly concerned
about the cost of the Services to be performed pursuant to this Agreement. For this reason,
Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or
events that may or will materially increase or decrease, the cost of the Services contemplated herein
or, if Consultant is providing design services, the cost of the project being designed, Consultant
shall promptly notify the Contract Officer of said fact, circumstance, technique, or event and the
estimated increased or decreased cost related thereto and, if Consultant is providing design
services, the estimated increased or decreased cost estimate for the project being designed,
7.2 Records. Consultant shall keep, and require any subcontractors to keep, such ledgers,
books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to
payroll reports), studies, or other documents relating to the disbursements charged to City and the
Services performed hereunder. (the "Books and Records"), as shall be necessary to perform the
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City's consent or �approval of any act by Consultant requiring CiVs consent or woval shall not
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�recluk the exercise by it, At the same ordiflbrehttitnes�4 any other ri tsorrernediesf6rthe
sarne 4cf4nit of My otber defklt by thq other party.
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the interests of City ififfie peffbfi-nilnbe of this Agittmeilt.
No officer or mnooyco of City Aall h�*e a�y fifianeW iriterest, direct or indirect, in
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[tally VF SOUL My prTalu, TIFTMAMT Milli LO tTlO:U*UFVss SM lurffFamw. P'llitra Pal L
may changq; its addrcss by nof*jnt the other 04y of4he change -of wdr�� In Writ fig Notic
shA be deemed coibmuhl6ated fprty4eight (4$) hours from th& ne of mailing if inailed a
pf6videdAn thk Sectioll.
To City:
CITY OF LA QUINTA
attention: Frank Spevacek,
City Manager [or designee]
as "Contract Officer"
78-495 Call e Tampico
La Quinta, California 92253
T6 c6jftsultantl
Ernphasys software
2�200 Powell &reet
Suite 310
i I le, CA 94609
I�OfYv*
101 lntervretatioAgreement shall be consthwd in accordance with the
meaning of th& language used And shall h6t be construed fbr or AgAinst either party by reason of
the auihorshi of this Agreemem orAny other rule of construction ��vhieh might othdrWise Apply.
103 ��ion fl,eading 4uj-86heqdjng�� lbe section headinks arid subheadings contained
in this Agreement ate iiialuded for convenience only and shall not Imut or otherwise aMet the
terms offfi15 AgreorneAL
10A This Agreement may be executed in counterparts, each of which shall
be deenied to be an original, and such counterparts shall constitute one and the same instrument
0.0 Amendment. No Amendment to or modification dtfils Agreement shall tie valid
unless made in writi I ng and approved by Consultant and by the City Council of CJ* The parties
agree that this requirement for writt&h modilleWonscannot be waived and that any attempted
waiver shall be voU
uWalidprOvisionf9so-m eriAlthin its invalidity dqriVes either party 01 the basic benetit of their
bargain or rendetsAhis Agreement rneanihgless
NO 11=. M101511FAlIffilim. ININNEW. go.
THAW Iffiffiff*111WHIIAM011,
f arising 60M putthases o good4� services, or materials related t6 this Ativement This assignment
IIIIIIIIIIII
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10.9 No Third Pa!ty Beh&Matje& With the ex:&&�Ofi of the specific provisiom set fbr(h
in this Agreem"� there ate no intended third�ptirty beno6ciaries under this Agre&inent and no
such other third parties shall have any jights or obligattom hattuhden
Agreement, such party is f6mally �"Od to the provisi8ns ofthis Ato4ment ,4j (iv) ffilt extering
into 4his Agreement does not violate any pfovhqion of any other Agroement to which said party is
Won& Tfii� Agreement shall be bindittg upon the lielts, executors, adrolhistrAtOks, s0c&e§sofs, and
assigns ofthe patties.;
FIB WITNESS WHEREOF, the parties have executed this Agreement as of the date stated
below.
ITS' OF LA QUINTA, CONSULTANT:
a Califomia municipal corporation
By:
Fove
UD ^� l
LMS
Marne:
FRANK J. SPEVACEK,+pity Manager Title:
Dated: _ Dated:
ATTEST: : By -
Name:
U AN MAY EL , City Clerk Title:
La Clint, California'
Dated:
APPROVED AS TO FORM,
V LLIAM H. IHRKE, City Attorney
City of La Quinta, California
-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below,
CITY OF LA QUINTA,
- I -C'tr'?-t4'
IBM=
By:
Name:
SUSAN MiAYSELS, NY qrl Title:
La Quinta, California Dated:
SIGNED IN COUNTERPART
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
M
Exhibit A
Scope of Services
0 Section 2(G);
* Tice Second and Third Sentences in Section 4(C);
® The Last Sentence in Section 5(C);
* Section 5(D);
* Section 6(C);
* Section 7
S�Ocfi" 0(0 shall be mod ffkd 0 fiifeg rab� the keo tessional Services Ag reethe
and all exhihits and attactimenN thefeth, ineluding the License Agreement,
the Rill 4reenlent of the parties. I
the Pro&sslonal SeMees Agroement:
^1
emphasys sottware
EMPHASYS SOFTWARE LICENSE AND SERVICE AGREEMENT
This Emphasys Software License and Service;Agreement ("Agreement") is entered into
effective the — day of .2016 ("Effective Date") by and between Emphasys
Software a Hchigan corporation, with its principal place of business located ate 2200 Powell Street,
Suite 370, Emeryville, CA 94 608 ("Emphas ys"), and the City of La Quinta, a California City, with its
principal place of business located at: 78-495 Calle'rampico, La Quinta, CA 92253 ("Licensee").
RECITAU
A: Ernphasys designs, develops and licenses a proprietary computer software solution known as
the SymPro Treasury Management Software.
B. Licensee desires to obtain a personal, nontransferable, non-eyclusive limited right and license
to use such software and related documentation and services for Licensee's own internal business
purposes only and Emphasys is willing to grant such a license on the terms and subject to the
conditions of this Agreement.
THEREFORE, in consideration for the fees to be paid by Licensee hereunder and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree:
10 Certain Definitions. As used in this Agreement, the following terms shall have the following
definitions:
A. "Annual MaintgLiance and SuDt)ort Plan", or "Plan" shall tnean the then -current
support services Licensee elects to purchase from Empbasys. The Annual Maintenance and Support
Plan as of the Effective Date is summarized in the attached Exhibit B. Emphasys may change the
support services it offers with a 60 day written notice to Licensee regarding changes that will be
effective with the next Annual Support and M-airitenancetenewal date.
B. "Authgtized Users" shall mean Licensee and its employees and no other persons or
entities; the number of which is stated in the attached Exlubit A and which triay be changed by
amendment to the attached Exhibit A or authorized purchase order issued by Licensee and accepted
by Emphasys,
C. "DesianaLed Equipment" shall mean a single Intel based computer or a network file
server on which licensee uses the Software pursuant to this Agreement and which is more fully
described in the attached Exhibit A.
Dr "Desi-unated Site" shall mean the location at which the Designated Equipment and
Licensed Products are located during the terns of this Agreement as identified on Exhibit A to this
Agreement or such other location as may be expressly approved inwciting by Emphasys.
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Eemaster 102512
E: "D - mentation" shall mean all user/operation roannals and other materials or
information describing the Software, as hereinafter defined, its performance characteristics, technical
features and other relevant information reasonably required for use of the Software, including all
physical media upon which the materials or information are provided.
F 'TirvLsed PrQdints" shall mean the Software and the Docurneritadon,
_
G. "Soft rare" shall mean that certainh�mphasys proprietary computer software solution
known as Sy Pro Treasury Management Software, in machine readable, object code form, as fisted
on Exhibit A, and any modules, b-ug fixes, modifications, enhancements and other SymPro or third
party software provided to and licensed hereunder by Emphasys to the Licensee during the Term.
2, 591bLa_re__T__1cWLc -
A, License Grant. Subject to the terms of this Agreement, Emphasys hereby grants to
Licensee, and Licensee accepts, a limited, personal, non -transferable and non-exclusive perpetual
license to use the Licensed Products solely for Licensee's own internal business purposes and solely
on the Designated Equipment located at the Designated Site by the number of Authorized Users
stated in the attached Exhibit A or such Authorized Users added during thererm. Licensee shall be
permitted to make one copy of the Software for backup and archival purposes only, Each copy must
reproduce all copyright and other proprietary notices.
B. Warranty of Ownership. Emphasys warrants to Licensee (and no other person or entity)
that it is the author and owner or proper Licensee of the Licensed Products and has the right to enter into
this Agreement.
C, Emnh s s Retains Title. Licensee acknowledges that Emphasys and its licensors retain
title to the Licensed Products, all copyrights, trade secrets and other intellectual property rights licensed
to Licensee even if Licensee's suggestions are incorporated into subsequent versions of the Software. The
Licensed Products constitute a trade secret and are confidential to Emphasys.
D. ND Qwnershi Rights. Other than the limited right of use of the Licensed Products
p -
described in this Agreement, Licensee neither shall have nor shall it acquire any tight, title or interest
in or to any of the Licensed Products or in any intellectual or proprietary rights represented thereby.
E. License Re21dqignL Licensee agrees that it Nvill not modify, decompile, disassemble,
translate or reverse engineer the Software, in whole or in part, Except as expressly stated, this
Agreement does not include any tights to use, disclose, sublicense, or otherwise transfer the Software,
Documentation, or other proprietary information of Emphasys, Licensed Products shall not be used
to process data except for Licensee's internal purposes.
K Licensceshall immediately notify Emphasys in writing of any actual or Suspected breach
of this Agreement, including, without limitation, its terms limiting use.
G. Audit. Upon 10 days prior written request, Emphasys may audit and examine
such records at Licensee's offices during normal business hours, solely for the purpose of
confirming the accuracy of all amounts due and paid hereunder, In the event that an audit
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- - - - - - - - - -
3Del'yery of License_d Prgducts, Software may be delivered to Licensee by CD or by remote
telecommunications from Emphasys' place of business unless the parties agree in writing to an
alternative method of delivery, Ernphasys is not responsible for installing the Software unless
Emphasys is specifically contracted to perform installation and training services.
4. Feel and Payment,
A; Licenses, Fee, Licensee shall pay the then current fees for the Licensed Products ("License
Fees"). Licensee will remit payment for the Licensed Products within 30 days of Emphasys' invoice:
& Annual Maintfgance and Sinopt Plan, If Licensee elects to purchase services under
the Annual Maintenance and Support Plan, Licensee shall pay the then current annual service fees
within 30 days of Emphasys' invoice, Ernphasys, may adjust the services fees for Licensed Products
added in any annual period in the subsequent year.
C, Pg-inents, All payments (i) shall be made by bank check of Licensees 'Check or Nvire
transfer of immediately available funds and (ij) shall be due and payable to Emphasys (or Ernphasys'
assignee) in US. Dollars, at Emphasys' address as stated above, or such other places as Emphasys
may from time to time designate in writing. All payments shall be madewithout offset or deduction
of any nature whatsoever and are nonrefundable except as expressly stated. Licensee shall pay all
applicable federal, state and local sales, use, excise, transportation, occupational or similar taxes or
assessments, customs or duties:-
5. Warranty,
A. Emphasys warrants that: (i) Software will perform in accordance with Emphasys'
standard specifications stated in its Documentation for a period of 180 days from the date of first
installation of the Software (exclusive of bug fixes, modifications or eahancernents provided during
the warranty period or under the Annual Maintenance, and Support Plan); and, (ii) Services provided
under the Plan will be performed in a professional and workmanlike mariner and bug fixes,
modifications, enhancements provided under the Plan will perform in accordance with Emphasys'
standard specifications, EXCEPT FORTHE WARRANTIES STATED ABOVE, EMPHASYS
AND ITS LICENSORS MAKE NO OTHER WARRANTIES, WRITT EN OR ORAL,
WHETHER EXPRESS OR IMPLIED. EMPHASPS AND ITS LICENSORS EXPRESSLY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION
THE WARRANTIES -OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON -INFRINGEMENT, For warranty support, Licensee should
contact. 7echttical Support at telephone numher,510 a55 0900.
13, Licensed Products are of a complex nature resulting in operations that may be interrupted
or errors that may he encountered. Eniphasys sole obligation and Licensee's sole remedy under this
warranty is for Empl-vasys, at its option, to provide such services, bug fixes or other modifications it
4
deems appropriate, pro -vide a functional equivalent or reperform, services, if: (i) Emphasys receives
proper notice of any claimed Software defect during the warranty period or a> claim of defective
services or Software under the Plan within 10 business days of the related occurrence. Proper notice
includes copies of the data, reports and written procedures documenting the claim, And, (JJ) the
Licensee is otherwise in compliance with this Agreement and using the current version of the Software
in accordance with Emphasys' standard specifications; and, (iii) Emphasys is able to reproduce any
claimed defect, Should Emphasys determine in its sole judgment after reasonable effort that a covered
defect cannot be remedied, Emphasys may elect to terminate this Agreement as to the effected
Software and refund the paid, unused License Fees as to the effected Software only upon return of
the Software and certification the Software is no longer in use by Licensee.
C, Further Lirtit ationj, The lirraited,�varranties provided in this Section 5, as hrrrited by other
provisions of this Agreement, are non -transfer -able by Licensee except as set forth below and shall
irnmediately become void in the event of any unauthorized use, modification or repair of the Licensed
Products or any part thereof or upon breach by Licensee of any provision of this Agreement, Except
as otherwise may be provided in any technical support and inainteriance agreement between the
parties, Licensee shall pay, at Emphasys' then current rates, for services performed by Ernphasys to
correct problems or defects not coveted by warranty, including, without limitation, those traceable to
Licensee's errors.
D. Licensee shall pay, at Ernphasys' then current rates, for services performed by Eri'lphasys
to address any problems or defects not covered by warranty or the Plan, including, without limitation,
those traceable to Licensee's errors, All such services will be provided to a specific proposal outlining
the scope of work, time and material rates and delivery schedules.
6, ID-deranification,
A. Empbasys hereby agrees to indemnifV Licensee against any damages finally awarded
against Licensee in connectionwitha claim that the Licensed Products directly infringe a United States
copyright or patent or other intcHectual property rights, provided that: (i) Licensee notifies Emphasys
in -vvriung within 30 days of the claim-, (d) Ernphasys has sole control of the defense and all related
settlernent negotiations; and (i i) Licensee provides Emphasys with the required assistance,
information and authoxity.Emphasys shall have no liability for any claim, of infringement arising frorm
(a) any unauthorized rise, alteration or modification of the Soffivare including use of the Software in
conjunction with products not provided by Emphasys; or, (b) use of -a superseded or altered release
of the Software if the infringement would have been avoided by the use of a, current unaltered release
of the Licensed Products.
B. If the Licensed Products are held or are believed by Emphasys to infringe, Emphasys,
shall have the option, at its expense, to. (i) modify the Licensed Products to be rion-infringing; or, (ii)
obtain for Licensee a license to continue using the Licensed Products. If it is not corntnercially
reasonable to perform either of the above options, then -Emphasys may terminate the license for the
infringing Licensed Products and refund any unused License Fees or Annual Maintenance and
Support Plan fees paid for the affected Licensed Products. Licensee shall discontinue use of the
Software.
C The provisions of dais Section 6 state each party's cadre obligation and liability with
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kniatter 102512
respect to the infringement of any property right based on the use of the Licensed Products.
7, LIMITATION QF LIABIL11a., To the extent a claim arises under warranty, the remedy
stated in Section 5 applies. To the extent a claim arises under indemnification, the remedy stated in
Section 6 applies. AS TO ALL OTHER CLAIMS, LICENSEE ACKNOWLEDGES THAT
POTENTIAL DAMAGES IN ANY PROCEEDING WOULD BE DIFFICULT TO MEASURE
WITH CERTAINTY AND THE PARTIES EXPRESSLY AGREE THAT AS A FAIR -
ASSESSMENT OF POTENTIAL DAMAGES, EMPHASYS AND ITS LICENSORS LIABILITY
UNDER THIS AGIZ-EEMENT, REGARDLESS OF FORM OF ACTION,
PROCEEDING OR
T14RORY OF REsCOVERY, SHALL NOT EXCEED THE LICENSE FEES OR FEES
ACTUALLY PAID TO HASPS WHICH ARE DIRECTLY RELATED TO THE CLAIM,
REGARDLESS OFTILE FCC RM Of-, ACTION, PROCEEDING, OR THEORY OF RECOVERY,
NEITHER EMPHASYS NOR ITS LICENSORS S14ALL IN ANY MANNER BE LIABLE FOR
ANY LOST PROFITS, LOST SAVINGS OR OTHER SPECIAL, INCIDENTAL,
CONSEQUE NTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION,
ANY SUCH DAMAGES ASSESSED AGAINST OR PAID BY LICENSEE TO ANY THIRD
PARTY, ARISING OUT OF THE USE, INABILITY TO USE, QUAL I fY OR PERFORMANCE
OFTHE LICENSED PRODUCTS PROVIDED, ENTL4N IF EMPHASYS HAS BEEN ADVISED
OFTHE POSSIBILITY OF SUCH DANIAA GES.
& Term and Terg2l �qon.
A. T—orm, This Agreement is fora perpetual license and shall continue until terrm.nated by
either party c-rerm-)under the following conditions.
B, ILrininatian.
(i) I hphasv 'RiLyht of Tertnination, Emphasys may ternunate this Agreement after 30 days
prior written notice for Licensee's failure to pay any amounts due (including any additional
License Fees or service fees resulting from legal changes expanding Licensee's rights of use).
(ii) Licensee's Right of Termination. Licensee may terninate this Agreement without cause
upon 60 days prior written notice prior to the anniversary date of this Agreement,
(11) insolvency or filing of a voluntary or invo.
not dismissed within 30 calendar days of flit
other liquidating officer for all or substandally
for the benefit of creditors.
fition in bankruptcy, which petition is
)pointment of a receiver, assignee or
Jeensce's assets or (IV) an assignment
C, Tettrl nqtiqn of Maintenance anjd-Supj)ort Plan. Either party may terminate the Plan upon
60 days written notice before the anniversary date of this Agreement;
D. Effect of fermi naIj= Except for termination of the Plan, Licensee shall cease use of the
Licensed Products upon termination of d-As Agreement and shall provide a written certification to
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Ernphasys, of removal of all copies of the Software from its system and destruction of all copies of
Software and Documentation except that required for archival purposes. Termination of the Plan
shall not result in termination of this Agreement unless otherwise specified. Termination of this
Agreement shall not relieve Licensee of its obligation to pay for any fees nor result in the refund of
any fees paid,
9, 0-me—ral.
A, In ' iLinctive Relief, Licensee's breach of any obligation under this Agreement regarding the
use, duplication, modification, transfer or confidentiality of the Licensed Products shall entitle
Emphasys to injunctive, specific performance or other equitable relief, all without need of bond or
undertaking of any nature, Licensee specifically acknowledging that Emphasys' remedies at law under
such circumstances would be inadequate,
B, Asgignme all not be assignable by either party and neither party may
.M, This Agreement shall
delegate its duties hereunder without the prior written consent of the other party, Any attempt by a
party to assign any of its rights or delegate any of its duties, hereunder without the prior written consent
the other party shall be null and void and shall result in iminediate termination of this Agreement
tinder its terms and conditions, Notwithstanding the foregoing, either party may assign its rights or
delegate its duties under this Agreement without written consent of the other party in the event that
this Agreement is Assigned to a successor, parent, or subsidiary of such party, or in the event of an
acquisition, merger, or sale of the majority of the relevant assets or shares of either party.
C Q 2overning Law and ue� This Agreement is governed by the laws of Michigan. Venue
lies in the state and federal courts located in Emmet County, MI.
D. 5gyerab—J;L� If a provision is declared invalid, the remainder of the Agreement will continue in
A
full force and effect, The offending provision shall be interpreted to whatever extent possible to give
effect to its stated intent,
R `giver. Failure to require performance of any provision or waiver of a breach of a provision
does <not waive a parry's tight to subsecli ien tly required full and proper performance of that provision.
R 1,--ritire Aareement. This Agreement represents the entire agreement on this subject matter
excluding an prior agreements, representations, statements, negodarions, and understandings and
provisions in any Orders issued hereunder unless the parties consent in writing. This Agreement may be
modified only by a written agteement signed by a party's authoritzed representative.
G. Conflict. Should any Exhibit conflict with this Agreement, the Exhibit shall control.
H, Notices, All notices and demands hereunder shall be in writing and shall be served by
personal service or by mail at the, address of the receiving party stated below (or At such different
address as may be designated by such party by written notice to the other party) and shall be deenied
complete upon receipt.
1. laft—endent. Each party is acting as -an independent contractor and not as an agent, partner,
or joint venturer with the other party for any purpose,
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kmascer 102.512
J. Cmpliance, with all Applicable Laws. Extiort. At all times, Licensee will adhere to all applicable
state, federal and local laws and regulations in the conduct of its business, installation and use of the
Software and maintain the proper insurances as are customary in the business, Licensee shall comply
with all applicable export and import control laws and regulations in its use of the Software and, in
particular, Licensee shall not "port or re-export the Software without all required United. States and
foreign government licenses,
K. E—orce_Ma'eurg, Except for the payment of any amounts due, performance Will be suspended
for force majeure upon written notice and may be tertninated if such event continues for more than
30 days.
L, Survival. Sections 2(C), (D) and (G), 4 through 7, inclusive, 8(D), and 9 shall survive any
tert-nination or expiration of this;Agreement,
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date:
Emphasys Software,
a Nfichigan corporation
By:
Address:
2200 I'mcH Street, Suite 1170
Erneryvik, California 94,608
TelNo. 510 655 0900
Fax: 510-655-4064
rim n-aaer 102512
City of La Quinta
("Licensee')
By:
(Authorized Representative)
Print Name..
Title:
Address:
78-495 CatleTarripico
La Quilita, CA 92253
Tel, No.
Fax:
Exhibit A
to
EMPHASYS SOFTWARE LICENSE AND SERVICE AGREEMENT
By and Between
Emphasys Soft re. and City of La Quinta, Licensee
Effective Date
1. DesiLanated Eauinj'netit:
wostatious: &rrent generation workstation; 32 or 64 bit operating system;
Windows operating systems (XP, Vista, 7); minfinurn I GB RAM; I GB of storage.
hit L-�k �rkin , Microsoft Windows Server (2005, 2008). lia—r—d—drive storagv. nit um
2 GB for software and portfolio data, depending on size and type of portfoho(s); 2
GB of RAM; Licensee's Installation: Installation is on a net -work server. ire
or opaudDg—gys �crns contact SymPro for compatibility
jn�formati�o.
78-495 Oka Tan)pico
La Quint, CA
Investment Portfolio Management
Fixed Income
MIulti-User License (3 Concurrent Users, Network)
Any other Software licensed during the Term a described in this Exhibit, any
amendment hereto or any purchase order issued by Ticensee and accepted by
Sympro
4, AuthorizedUsers. Network installation with concurrent access and support for 1-3
Authorized Users,
Total Software License Fee: $20,000
Annual Maintenance and Support $4,000
Con sulting/Ttairrng/Tmplerrient,,ition $1,600
(1 Days onsite —Travel expense not included)
M
6. Payment Schedule:
License fees will be invoiced upon execution of this agreement.
9
km,Aster 102512
Annual Maintenance and Support for year one wM be invoiced upon the earlier of
product dchvery date of 30 days from the execution of this
agreement.
Professional service fees and training wiJI be invoiced as services are performed.
M
Umaster 102512
Exhibit B
to
EMPHASYS SOFTWARE LICENSE AND SERVICE AGREEMENT
By and Between
Ernpivasys Software and City of La Quinta, Licensee
Effective Date
Annual Support and Maintenance Plan
The following SymPro Support and Maintenance Plan applies as of tire Effective Date. Emphasys reserves
the right to change this Plan at any time, with 60 days written notice. All changes will be posted at its websiw
WWW1sVWprQ,coM and will become effective as of the next Renewal Term. However, any Support and
Mainte nance Plan will include at least the following essential elements;
Priority service from technical support and client service representatives
Free SytriPto version corrections and enhancements released in the license and service term
Access to the SymPxo Internet Site for Suppoit (www.syrnpro.com)
I Jnlirnited telepthi I ne technical support in the followinz areas:
Loading and configuring of SymPro Software
Operational Questions, including standard SymPro reports
Data entry support for all investment types supported within SymPro, including:
Certificates of Deposits Rolling Repurchase Agreements
Negotiable Certificates of Deposits GNMA, Pass Through
Checking Accounts Bankers Acceptances
Commercial Paper Corporate Bonds
Commercial Paper Discount Medium Term Notes
United States Treasury Issues, Coupon & Discount
Federal Agency Issues, Coupon & Discount
Tele-consultation is provided during normal business hours (6:30AM'ro 5:OOPM - Pacific Time), Monday
through Friday for questions dealing with the operations of the Licensed Software, on Designated Equipment.
Support issues may be reportedvia voicemail (510-655-0900 Selection 2), fax (510-655-4064), or email
(support@sympto.corn), 24 hours a (lay, Answers to "Frequently Asked Questions" are available at
www,sympiro-com, 24 hours a day. The resolution of some issues may require that Licensee provide Emphasys
with a copy of Licensee's data. Licensee of to provide Ernphasys with a copy of their data [or the purpose
of resolving Licensee's issue and Emphasys agrees to maintain full confidentiality of any required data and 'Arill
use it only for the resolution of the Licensee's issue,
Not Included: Consulting on issues conceming investment accounting matters, specific financial or
invesurient matters, research on investments not supported within the Licensed Software, or data entry for
investments not supported in the Licensed Software system are not included.
Exhibit B
Schedule of Compensation
Exhibit C
Consultant —shall complete --- services -----_--_—identified —'— the Scope -- Services, Exhibit ~----- this
-
m
Exhibit E
Insurance Requirements
E.1 Insurance, Priot to the begiiihirig of and thbughb4it th& duration of this Agreement,
the &flowing policies�shall be maintained and keo in full force and effect Providing insurance
withninimuni limits as indicated below and issued 4 insurers with A.M. Best ratings of�no less
than
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Errors and Ornissions Liability
$1,000,000 (per claim and aggregate)
Workers' Compensation
(per statutory requirements)
Consultant shall procure and maintain, at its cost, and submit concurrently with its
execution of this Agreement, Commercial General Liability insurance against all claims for
injuries against persons or damages to property resulting from Consultant's acts or omissions rising
out of or related to Consultant's performance under this Agreement. The insurance policy shall
contain a severability of interest clause providing that the coverage shall be primary for losses
arising out of Consultant's performance hereunder and neither City nor its insurers shall be required
to contribute to any such loss. A certificate evidencing the foregoing and naming City and its
officers and employees as additional insured (on the Commercial General Liability policy only)
shall be delivered to and approved by City prior to corrimencement, of the services hereunder,
Consultant shall carry automobile liability insurance of $1,000,000 per accident
against all claims for injuries against persons or damages to property arising out of the use of any
automobile by Consultant, its officers, any person directly or indirectly employed by Consultant,
any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly
or indirectly out of or related to Consultant's performance Linder this Agreement, If Consultant or
Consultant's employees will use personal autos in any way on this project, Consultant shall provide
evidence of personal auto liability coverage for each such person. The term "automobile" includes,
but is not limited to, a land motor vehicle, trailer orsemi-trailer designed for travel on public roads.
The automobile insurance policy shall contain a severability of interest clause providing that
covet -age shall be primary for losses arising out of Consultatifs performance hereunder and neither
City nor its insurers shall be required to contribute to such loss.
,Professional Liability or Errors and Ornissiow Insurance as appropriate shall be
include work performed under this agreement. The policy limit shall be no less than $ 1,000,000
per'claim and in the aggregate. The policy must "pay on behalf of the insured and must include
a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or
before the effective date of this agreement.
Consultant shall carry Workers' Compensation Insurance in accordance with State
Worker's Compensation laws with employer's liability limits no less than $1,000,000 per accident
or disease.
Consultant shall provide written notice to City within ten (10) working days if: (1) any
of the required insurance policies is terminated; (2) the limits of any of the required polices are
reduced; or (3) the deductible, or self: insured retention is increased: In the event any of said
policies of insurance are cancelled, Consultant shall, prior to the cancellation date, submit new
evidence of insurance in conformance with this Exhibit to the Contract Officer. The procuring of
such insurance or the delivery of policies or certificates evidencing the sane shall not be construed
as a limitation of Consultant's obligation to indemnify City, its officers, employees, contractors,
subcontractors, or agents.
E2 Remedies, In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due tinder this Agreement.
b. Order Consultant to stop 'work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant demonstrates compliance
with the requirements hereof,
C. Tenninate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Consultant's< failure to
maintain or secure appropriate policies or endorsements.
E.3 General Conditions Pertainina to Provisions of Insurance Coveraac by Consultant.
Consultant and City agree to the following MOresped to imuranoo povidod by Cori8ultartt:
I Consultant agrees to have -its insurer endbik the, third partygeneral FWlity
priof to aloss. Consultant agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors and subcontractors to do
likewise.
I All insurance coverage and limits provided by Consultant and available or
applicable to this Agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to City or its operations limits the
application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first submitted
to City and approved of in writing.
5, No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor,
6, All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises- Consultant shall not make any reductions
in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that
may affect City's protection without City's prior written consent,
MW
of work oft the prqject contemplated by this agreement to s&411sure its obligations 'to C4. If
Cbristiltam's existing coverage includes a deductibleor self4risured retentiob, the deduotibie or
�self-in�utvd retention must be de&lared to the City
IMIM
executed all has provided eqr(ificates of such insurance to the City.
13. Consultant acknowledges and agrees that any actual or alleged failure on the part
of City to inform Consultant of versa -compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any other regard,
14. Consultant will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this agreement.
This obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that effect;
15Consultafttshall povidejoof fha(pohOics of iasumce required h6r6m expiring
16. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials, and
agents,
17. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits or other requirements nor as to waiver of ally
coverage normally provided by any given policy, Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any party
or insured to be limiting or all-inclusive.
M Illese insurance requirements arc inteMed to be separatip and distinct froni any
other provision m this A$*ment and are intended hy the parties here to be interpreted as su&
The requirements in this Exhibit supersede all other sections and provisions of this
ie extent that any other section or provision conflicts with or impairs the provisions
delew with reference to 0* It is not the Int" of Cityth r6iniburse auy� third party f�r the op
of tornplying with these requitemerAg. IUM shall be no recourse against City for payment 0
Miniurns or other amounts With respect thereto. I
2 1. CoAsultaht agrees to pmA& iffirnOdiate notice to City of 44 claim or loss against
Consultant arising out of ffizwoik performed Under this 4greement. City assuMeg no oWigation
claim or claims if they are IW4 to involve City,
Exhibit F
Indemnification
`.I General Indemnification Provision, The indemnification provisions in Sections 6(A)
and 6(B) in Exhibit A attached to the Agreement (i.e., the "Scope of Services" or "License
Agreement") shall apply. In all other instances:
I a. hidemn if cation foL Professional _]Jability, When the law establishes a
professional standard of care for Consultant's Services, to the fullest extent permitted by law,
Consultant shall indemnify, protect, defend, and hold harmless City and any and all of its officials,
employees, and agents ("Indemnified Parries") from and against any and all claims, losses,
liabilities of every kind, nature and description, injury (including, without limitation, injury to or
death of an employee of Consultant or of any subcontractor), costs and expenses of any kind,
whether actual, alleged or threatened, including, without limitation, incidental and consequential
damages (provided, however, that the indemnification hereunder for court -awarded damages may
not exceed three times the, amount of the Contract Sum), court costs, attorneys' fees, litigation
expenses, and fees ofexpert consultants or expert witnesses incurred in connection therewith and
costs of investigation, to the extent same are cause in whole or in part by any negligent or wrongful
,act, error or omission of Consultant, its officers, agents, employees or subcontractors (or any entity
or individual that Consultant shall beat the legal liability thercoo ;in the performance of
professional services tinder this agreement. With respect to the design of public improvements,
the Consultant shall not be liable for any injuries or property damage resulting from the reuse of
the design at a location other than that specified in Exhibit A without the written consent of the
Consultant.
•
b. Indemnification Provision for Desian Professionals.
I . ApplicabitftL_12L I of --Ssge�c�tion F.2i Notwithstanding Section F.2(a)
hereinabove, the following indemnification provision shall apply to Consultants who constitute
"design professionals" as the term is defined in paragraph 3 below.
2. Scone of Tridemnification. To the fullest extent permitted by law,
Consultant shall indemnify, defend, and hold harmless the Indeinnifle-d Parties from and against
any and all claims, losses, liabilities of every kind, nature and description, damages, injury,
(including, without limitation, injury to or death of an employee of Consultant or of any
subcontractor), costs and expenses of any kind, whether actual, alleged or threatened, including,
without limitation, court costs, attorneys' fees, litigation expenses, and fees of expert consultants
or expert witnesses incurred in connection therewith and costs of investigation, that arise out of,
pertain to, or relate to, directly or indirectly, in whole or in part, the negligence, recklessness, or
willful misconduct of Consultant, any subcontractor, anyone directly or indirectly employed by
them or anyone that they control.
I Design Professional Defined. As used in this Section F.2(b), the term
"design professional" shall be limited to licensed architects, registered professional engineers,
licensed professional land surveyors and landscape architects, all as defined under current law, and
as may be amended from time to time by Civil Code § 2782.8,
CERTIFICATE INSURANCE
idAlillED INSURED
This certificate is issued as a matter of information only and confers no rights upon the
certificate holder. This certificate does not amend, extend or alter the coverage afforded by
CONSTELLATION SOFTWARE INC. and
thepolicies below.
INSURANCE COMPANIES AFFORDING COVERAGE
EMPHASYS COMPUTER SOLUTION INC
COMPANY
A Zurich Insurance Company Ltd. (AM Besr#os5oss, Rar;ngA+)
APPLICATION ORIENTED DESIGNS
SYMPRO, INC.
DBA EMPHASYS SOFTWARE
9675 NW 117TH AVE SUITE 305
MIAMI, FL 33178
CERTIFICATE HOLDER
COMPANY
B Travelers Property Casualty Company of America (AM Eest#ooaast,
CITY OF LA QUINTA
RatingA++)
COMPANY
C
78-495 CALLE TAMPICO
LA QUINTA, CA 92253
COMPANY
D
COMPANY
E Zurich American Insurance Company (AMBesr#002563, RatngA+)
COVERAGES
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 ARE IN U.S. DOLLARS UNLESS INDICATED OTHERWISE.
LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TYPE OF INSURANCE CO POLICY NUMBER
POLICY POLICY LIMITS OF LIABILITY
LTR
EFFECTIVE DATE EXPIRATION DATE
(YYYY/MM/DD) (YYYY/MM/DD)
COMMERCIAL GENERAL LIABILITY
$ 1,000,000 EACH OCCURRENCE
OCCURRENCE BASIS E GL08249874
2015/09/27 2016/09127 GENERAL AGGREGATE
INCLUDING:
$ 10,000,000
PRODUCTS AND COMPLETED OPERATIONS
$ 1'000'000 PRODUCTS- COMPLETED
CROSS LIABILITY/ SEVERABILITY OF INTERESTS I BLANKET CONTRACTUAL LIABILITY
OPERATIONS AGGREGATE
PERSONAL INJURY $1,000,000 LIMIT, ADVERTISING LIABILITY $1,000,000 LIMIT
TENANT'S LEGAL LIABILITY $1,000,000 LIMIT, MEDICAL EXPENSES $25,000 LIMIT
WAIVER OF SUBROGATION WHERE REQUIRED BY WRITTEN CONTRACT
Such insurance as is afforded by the Commercial General Liability coverage on this policy will be considered as primary insurance, not contributory and not excess of any other insurance.
AUTOMOBILE LIABILITY E BAP8249865
2015/09/27 2016/09/27 $ 1,000,000 EACHOCCURRENCE
- NON -OWNED & HIRED
UMBRELLA LIABILITY
A 8838706
PER
2015/09/27 2016/09/27 $ 14,000,000 AGGREGATERENCE & IN THE
NOT APPLICABLE
PROFESSIONAL LIABILITY AND E IPRO435933200
2015/09/27 2016/09/27 $ 5,000,000 PER CLAIM & IN THE AGGREGATE
TECHNOLOGY ERRORS & OMISSIONS
CLAIMS MADE BASIS
$500,000 DEDUCTIBLE
NOT APPLICABLE
NOT APPLICABLE
NOT APPLICABLE
WORKERS COMPENSATION &
E.L.:
EMPLOYER'S LIABILITY B PJ-UB-3G59252-2-15
2015/09/27 2016/09/27 $ 1,000,000 -EACH ACCIDENT
WC - STATUTORY LIMITS
-EACH DISEASE/ EMPLOYEE
INCLUDING WAIVER OF SUBROGATION WHERE
-DISEASE POLICY LIMIT
REQUIRED BY WRITTEN CONTRACT EXCEPT WHERE
PROHIBITED BY LAW
DESCRIPTION OF OPERATIONS / LOCATIONS ! SPECIAL PROVISIONS:
CITY OF LA QUINTA, ITS OFFICERS, EMPLOYEES AND AGENTS is added as Additional
Insured with respect to the Commercial General Liability policy, but only with respect to liability arising out of
the operations of the Named Insured.
BROKER
CANCELLATION
Arthur J. Gallagher Canada Limited
Should any of the above described policies be cancelled before the expiration date thereof, the issuing
120 South Town Centre Blvd.
company will endeavour to mail 30 days written notice to the certificate holder named above. Failure to
Markham, ON L6G 1 C3
mail such notice shall impose no obligation or liability of any kind upon the company, its agents or
representatives
SIGNATURE OF AUTHORIZED REPRESENTATIVE
PRINT NAME DATE (YYYY/MM/DD)
Q,il+l.1
SHEHNAZ ANDANI 2416/47/44
Additional Insured — Automatic — Owners, Lessees Or
Contractors
Policy No.
Exp. Date of Pol.
Eff. Date of End.
Agency No.
Add]. Prem.
Return Prem.
GLO8249874
127 Sept 2016
127 Sept 2015.
Included
NamedSoftware
Address (including ZIP Code):
This endorsement modifies insurance provided under the:
Commercial General Liability Coverage Part
A. Section II — Who Is An Insured is amended to include as an insured any person or organization who you are required
to add as an additional insured on this policy under a written contract or written agreement.
B. The insurance provided to the additional insured person or organization applies only to "bodily injury" "property
damage" or "personal and advertising injury" covered under SECTION I - Coverage A - Bodily Injury And Property
Damage Liability and Section I - Coverage B - Personal And Advertising Injury Liability, but only with respect to
liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf; and resulting directly from:
a. Your ongoing operations performed for the additional insured, which is the subject of the written contract or
written agreement; or
b. "Your work" completed as included in the "products -completed operations hazard", performed for the
additional insured, which is the subject of the written contract or written agreement.
C. However, regardless of the provisions of paragraphs A. and B. above:
1. We will not extend any insurance coverage to any additional insured person or organization:
a. That is not provided to you in this policy; or
b. That is any broader coverage than you are required to provide to the additional insured person or organization
in the written contract or written agreement; and
2. We will not provide Limits of Insurance to any additional insured person or organization that exceed the lower of:
a. The Limits of Insurance provided to you in this policy; or
b. The Limits of Insurance you are required to provide in the written contract or written agreement.
Includes copyrighted material of Insurance Services Office, Inc., with its permission. U-GL-1175-B CW (3/2007)
Page 1 of 2
The insurance provided to the additional insured person or organization does not apply to:
"Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering or failure to render
any professional architectural, engineering or surveying services including:
1. The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field
orders, change orders or drawings and specifications; and
2. Supervisory, inspection, architectural or engineering activities.
D. The additional insured must see to it that:
1. We are notified as soon as practicable of an "occurrence" or offense that may result in a claim;
2. We receive written notice of a claim or "suit" as soon as practicable; and
3. A request for defense and indemnity of the claim or "suit" will promptly be brought against any policy issued by
another insurer under which the additional insured may be an insured in any capacity. This provision does not
apply to insurance on which the additional insured is a Named Insured, if the written contract or written agreement
requires that this coverage be primary and non-contributory.
E. For the coverage provided by this endorsement:
1. The following paragraph is added to Paragraph 4.a. of the Other Insurance Condition of Section IV — Commercial
General Liability Conditions:
This insurance is primary insurance as respects our coverage to the additional insured person or organization, where
the written contract or written agreement requires that this insurance be primary and non-contributory. In that
event, we will not seek contribution from any other insurance policy available to the additional insured on which
the additional insured person or organization is a Named Insured.
2. The following paragraph is added to Paragraph 4.b. of the Other Insurance Condition of Section. IV — Commercial
General Liability Conditions:
This insurance is excess over:
Any of the other insurance, whether primary, excess, contingent or on any other basis, available to an additional
insured, in which the additional insured on our policy is also covered as an additional insured by attachment of an
endorsement to another policy providing coverage for the same "occurrence", claim or "suit". This provision does
not apply to any policy in which the additional insured is a Named Insured on such other policy and where our
policy is required by written contract or written agreement to provide coverage to the additional insured on a
primary and non-contributory basis.
G. This endorsement does not apply to an additional insured which has been added to this policy by an endorsement
showing the additional insured in a Schedule of additional insureds, and which endorsement applies specifically to that
identified additional insured.
Any provisions in this Coverage Part not changed by the terms and conditions of this endorsement continue to apply as
written.
Includes copyrighted material of Insurance Services Office, Inc., with its permission. U-GL-I175-B CW (3/2007)
Page 2 of 2
Aawl
TRAVELERS WORKERS COMPENSATION
AND
ONE TOWER SQUARE
HARTFORD, CT 06183 EMPLOYERS LIABILITY POLICY
011141-1111w=
51143UPPITUlf-W61124IR �si,
FURNISH THIS WAIVER.