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HomeMy WebLinkAboutResolution 2013-0026TITLE: CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 26 Series of 2013 A RESOLUTION APPROVING A COLLABORATIVE LUMEN TRIAL AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE, COLORADO AND THE NUMERICA CORPORATION FPR THE DEVELOPMENT OF A CRIME ANALYSIS SOFTWARE SYSTEM WHEREAS, the City of Wheat Ridge , Colorado (the "City), acting through its City Council ("Cou ncil "), is a home rule municipality with statutory and constitutional authority to enact ordinances and enter into agreements for protection of the public health , safety and welfare ; and WHEREAS , the Wheat Ridge Police Department desires to play an active role in the development of a sophisticated crime analysis software system, known as Lumen , being developed by the Numerica Corporation ; and WHEREAS , the Lumen software system is a sophisticated analytics computing platform being developed for use by Colorado law enforcement agencies in the investigation and analysis of criminal activity; and WHEREAS , the Numerica Corporation has proposed a collaborative trial agreement concerning Lumen with three area law enforcement agencies , including Wheat Ridge , Arvada and Lakewood ; and WHEREAS, the Council finds that it is desirable to enter into the proposed agreement to permit the Wheat Ridge Police Department to participate in the development of a new tool in the investigation and analysis of criminal activity. NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council , that: Section 1. The attached Collaborative Lumen Trial Agreement between the City and the Numerica Corporation is hereby approved. The Mayor and City Clerk are authorized to execute the same. Section 2 . This Resolution shall be effective immediately. ATIEST: nelle Shaver, City Clerk nurnerico NUMERlCA CORPORATION COLLABORATIVE LUMEN TRIAL AGREEMENT This Numerica Corporation Collaborative Lumen Trial Agreement (the "Agreement") is entered into this 22nd day of July. 2013 {the ·'Effective Date "), between Numenca Corporation ("Numerics"), a Colorado corporation. and the Cit) of Wheat Ridge, Colorado (the ·'City") (each a "Party."' and collectively. the "Parties'"). BACKGROUND. Exclusively at private expense. Numerica has developed and maintains the Lumen software system (''Lumen"), a sophisticated internet cloud-based analytics computing platform for use by Colorado law enforcement agenctes in the investigation and analysis of criminal activity. Lumen collects Law Enforcement Data (as defined in this Agreement) from disparate data streams. and then filters and analyzes the resulting information in ways that result in a more useful work product than could be achieved by analyzing the data in its separate states Using Lumen, Numenca mines, filters, combines, integrates, or otherwtse manipulates Law Enforcement Data in an effort to gain insights into the relationships between these disparate data groups which may not have been previously apparent This process relies on the use of advanced computing technology utiliz ing (among other things) innovative algorithms. compressed sensing, and predictive modeling systems . 2.. PURPOSE. Numerica wishes to access the City's Law Enforcement Data in order to provide the City access to Lumen on a no-cost, trial basis. Numerica will use such data to -exclusively at private expense -continue testing and refinement of Lumen and to evaluate the marketability of the platform . In anticipation of a potential subscription to Lumen in the fu ture, the City wishes to collaborate with Numerics by granting Numerica access to the City's Law Enforcement Data and to util ize Lumen on a trial basis so that the Ctty may provide feedback regardmg platform functionality. In accordance wtth this Purpo se, this Agreement governs the Parties' rights and obljgations concerning Numerica's provision of-and the City's access to and use of-Law Enforcement Data through Lumen . 3. DEFINITIONS. For purposes of this Agreement, the following terms are defined as follows : (a) .. CJIS Security Policy'' means the Federal Bureau of Investigation Cnminal Justice Information Services Security Policy. v.5.0 (CJISD-n'S-DOC-08140-5 .0) dated February 9, 2011 . (b) "Criminal Justice Information" shall be defined as set forth in the CJJS Security Policy. (c) ··criminal Justice Records" shall be defined as set forth in C.R.S . § 24-72.-302(4), as may be amended fTom time to time . All Law Enforcement Data transmitted between the Parties pursuant to thts Agreement constitutes Criminal Justice Records (d) ·'Law Enforcement Data" means data that is maintained by law enforcement agencies and other local government agencies in their records management systems, and that is used by such agencies in (among other activities) the investigation and prosecution of criminal activity . Law Enforcement Data includes, but is not necessarily limited to , Cnminal Justice Information ; Criminal Justice Records; calls for service information; incident data (includ ing original narrative reportS ; arrest data; and Personally Identifiable information . (e) "Lumen" means the collective hardware. software, and applications maintained or installed by Numerica and used by the City to access, review, and search Law Enforcem<.:nt Data provided under this Agreement. (f) '·Outside Law Enforcement Data" means Law Enforcement Data that is shared with Numerica by third-party law enforcement agencies for the purpose ofuptoadmg, processmg, and eventual use on Lumen by the parties Numerica authorizes to have access to such data. {g) "Personally Identifiable lnfonnation" shall be defined as set forth in the CHS Security Policy . 4 TERM. This Agreement shall take effect on the Effective Date and shall terminate on December 31 , 2013 or upon the tenrunatJon of this Agreement pursuant to Paragraph 17. Notv.•ithstanding the foregoing , the expiration of the Term will not supersede the rights and obligations of the Partie s under Paragraphs 9-15 : 19-21. 5. THE CITY'S PROVISION OF DATA. At mutually agreed upon times and in mutually agreed upon formats , the City agrees to provide Numerics, on a continuing basis, with electronic access to Law Enforceme nt Data in the City's custody or control (includmg access to the City's databases. nerworks, or other repositories) fo r the Term of this Agreement, for the purpose of uploading and processing the City's Law Enforcement Data on Lumen . The City agrees Page 1 of6 nurnerico that Numerics employees. as authonzed by the City, may work from a location within the Cit) 's facilities and may connect to the City's computer network as required tO access the City's Law Enforcement Data. All Law Enforcement Data, regardless of where it is located or accessed by Numenca, must be stored securely (i n keeping with the highly sensitive nature of the data) pursuant to Paragraph 9 . 6 NUMERICA'S SERVICES. Numerics shall provide the City with access to Law Enforcement Data and use of Lumen for the Term of this Agreement. (a) Numerics shall determine the nature and extent of the City's access to Lumen (mc ludmg, but not limited to, which Cit)• employees shall have access to Lumen) and the particular features thereof that Numerica will make available to the City. Lumen data and features may include, and are not necessarily limited to: Law Enforcement Da~ refined by the analytic systems of Lumen; CAD data; Offender Databases ; and open source intelligence feeds (publically-available feeds from a variety of open sources, possibly including weather, economic, demographic, and social media). (b) Execution of this Agreement does not in any way ensure or create any right to or expectation of future work or collaboration between the Parties. 7. NO-COST AGREEMENT. Monetary compensation for or by either Party IS neither contemplated nor demanded. Accordingly, no monetary compensation shall be paid by either Party to the other for any services or Law Enforcement Data provided under this Agreement . However. the Parties agree that it has entered into this Agreement for other valuable consideration, the receipt and sufficiency of wh1ch is hereby acknowledged. 8. fNSTALLATION. At a time mutually agreeable to the Parties, Numerica personnel shall install and configure all Lumen software necessary to provide the City with access to and usc of Lumen pursuant to this Agreement. 9. PROTECTION OF DATA. The Parties expressly recognize that certain Law Enforcement Data provided by the Panics pursuant to this Agreement is confidenual and sensitive. The Parhes also agree that security of the Law Enforcement Data is a paramount concern of the Panics and IS necessary in order to comply with apphcable law and to protect the public's welfare and safety. Accordingly, the Parties shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and mtcgrity of the City's Law Enforcement Data linked to Lumen, as specified below. (a) Numerics agrees to adhere to the CJlS Security Policy -as it may apply to Numerica as a non-law enforcement entity-in connection with Numerics's access to. storage, use, and sharing of Law Enforceme nt Data under this Agreement . Numerics agrees to treat all Law Enforcement Data as Criminal Justice Information under the CJIS Security Policy for purposes of this Agreement. although not all Law Enforcement Data will necessarily qualify as Criminal Justice Information . (b) The Parties mutually agree that they will treat all Criminal Justice Records in strict conformance with th.e provisions of the Colorado Criminal Justice Records Act portion of the Colorado Open Records Act ("CORA"), except that Numerics i.s in no way deemed to be a custodian of criminal justice information or records for purposes of releasing under CORA any criminal justice records to which Numerics has access under this Agreement (c) Notwithstanding any other provision in this Agreement, if there occurs any change of law involving the transmission , transcription, and/or use of Criminal Justice Information, Cnminal Justice Records, or Personally ldentifying Information, that results in a material effect on the legitimate expectations of either Party at the time such Party entered into this Agreement, both Parties agree to cooperate in making reasonable rev1sions to this Agreement to the mimmum degree necessary in order to enable this Agreement, as revised, to fulfill to the maximum ell.1ent the legitimate expectations of both P1111ies. (d) Numerics shall ensure that third-parties to whom Numerics provides access to the City's Law Enforcement Data are bound by the restrictions of this Paragraph by including provisions to that effect in those third- p1111ies' agreements with Numerics for access to and usc of the City's Law Enforcement Data through Lumen. (e) Unless provided otherwise under any follow-on agreement or extension of or modification to this Agreement., which requires access to the City's Law Enforcement Data. promptly after the expiration of the Term of this Page 2 of6 nurnerica Agreement, '\lumerica shall remove and destroy all Law Enforcement Data obtamed from the Cit} pursuant to th1s Agreement from Lumen and from an) otht:r location at wh1ch such data has been uploaded or otherwise stored or mamtamed 10 . LIMITED LICENSE. !\umenca's prOVISIOn of Lumen access to the C1!) under th1s Agreement shall be construed as a hm1ted license to use Lumen, as described below (a) License Grant Numerica hereby grantS to the Cit) one non-excluSI\e, non-transferrable, revocable, limited, executable license to use Lumen, subject to any restncuons in sen1ces or uses conta.tned in th1s Agreement The City's use of Lumen is limned to the City's mtemal use only, and only to extent used in suppon of the Purpose described in Paragraph 2. This license includes a license under all Numerica patentS and copyrights and any applications therefor. (b) General Restrictions. The following general restncuons shall apply to th1s Agreement and the Limited License (i) Except for the license expressly set fonh in this Paragraph 10, nothing in this Agreement shall be deemed a hcense or other grant of right between the Parties relative to any intellectual property owned by a Part) that may be embod1ed in any work product created or delivered m connection with this Agreement, mcluding any upgrades to Lumen: (ii) Lumen. mcludmg, but not hmned to, all software, source code, algorithms, and all other constituent pans thereof, has been developed and reduced to practice solely at Numerica's pnvate expense; (i1i) Lumen is the propeny of Numerics and title in. and to, Lumen, including any mvenuons, designs, works of authorslup, mask works, techmcal mformauon, computer software, busmess information and other mformation, shall remam w1th Numenca, mcluding wtthout limitation all copynghtS, patent nghtS, trade secretS, trademarks. and other mtellectual propeny rightS therein, (iv) Any and all nghtS m any newly developed mtellectual propert) wh1ch may ansc out of the Clt)'S access to or use of Lumen or the Parties' exchange of data under th1s Agreement shall be the exclusive propeny of Numenca, {v) The Limited License is limited to the grantS prov1ded to the Cit> under th1s Agreement and does not extend to any other related or affiliated organizations or agenc1es (c) Addiqonal Resl!IC!Ions. The Cny shall not (1) dccomp1le, reverse cngmeer, or alter Lumen or any portion thereof, (n) make Lumen ava!lable to an) third party: (iii) prepare derivau\e works based upon Lumen; (1\') transfer, ass1gn, or sublicense the use of Lumen or th1s Agreement, except as permined herein, or (v) use Lumen m v1olauon of any laws or regulations. II. CONFlDENTlALITY. The Parties recogn1:te that Lumen is proprietary to Numenca and contains confidential commercial mformauon and trade secrets. The City therefore agrees that 11 will not in any manner, usc, disclose, or othcrw1se communicate any information with respect to Lumen which might enable copymg of all or any portion of Lumen WithOut the express wrinen consent of Numerics or unle!is in accordance with the terms and conditions comamed in this Agreement. The City also recognizes that no Numerics-proprietary materials or records regarding Lumen m the City's custody shall be subject to disclosure under CORA (C.R.S. § 24-72-204(3)(a)(JV)) 12 WARRANTY. (a) Numenca represents and warrantS, to the best ofNumenca's knO\\Iedge and belief, that Lumen, as provided to the Cit). does not mfnnge any vahd nghts of any th1rd party (b) EXCEPT AS PROVIDED HEREIN, NUMERICA PROVIDES LUMEN (AND ANY SUBSCRIPTION SERVICES) "AS IS" AND WITI-iOUT A.'N WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLlED WARRANTIES OF NON-fNFRJNGEMENT. MERCHANTABILITY, FITNESS FOR A PARTIC ULAR PURPOSE, OR THAT LUMEN WlLL BE WITHOUT ERROR OR (}..'VULNERABLE TO VIRUSES, WOR..\1S, OR OTHER HARMFUL SOFTWARE OR HARDWARE. THE CITY HEREBY ACKNOWLEDGES THAT LUMEJ\ MAY NOT BE AVAILABLE DUE TO AJ'\'Y NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, UNAUTHORIZED ACCESS. VIRUSES, DENIAL OF SERVICE OR OTHER A 1T ACKS, TECHNICAL F AlLURE OF LUMEN, TELECOMMUNICA TlONS 11\lFR.ASlltUCTURE, OR DISRUPTION THE CITY IS SOLELY RESPONSIBLE FOR TilE OPERA TJON, PERFORMANCE. ACCESS AND SECURITY OF THE NETWORKS (INCLUDTNG WAN, LAN AND WIRELESS) AND COMPUTERS OVER AND ON WHJCH LUMEN WILL BE ACCESSED. NUMERICA MAKES NO WARRANTIES AND HAS NO RESPONSIBILITY FOR NETWORK SECVRJTY, FIREWALLS, SERVERS, BANDWIDTH, LOAD BALANCERS , SSL CERTIFICATES. DOMAIN NAME SYSTEMS (DNS), INTRUSION DETECTION SYSTEMS (IDS), MONITORING, ROUTERS, ANTI-VIRUS Page 3 of6 nurnerico MECHAl\liSMS. OPERATING SYSTEM OR OTHER THIRD-PARTY PRODUCT UPDATES Al\'D LPGRADES, OR AJ'"f OTHER ASPECTS OF TilE CITY 'S OR THE CITY'S CUSTOMERS' \lETWORK OR COMPUTERS. THEREFORE. r\UMERJCA EXPRESSLY DISCLAIMS Al'\Y EXPRESS OR IMPLIED WARRAJ:\TY REGARDil'\G SYSTEM USE AND/OR LUMEN AVAILABILITY, ACCI:.SSIBILITY. SECURJTY OR PERFOR~M CE TilE CITY AND ITS CUSTO~ERS ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING. REPAlR OR CORRECTIO'l'\ OF PROBLEMS Al\D Al\Y OTHER DIRECT OR fNDIRECT DAMAGES OR COSTS CAUSED BY lThAUTHORlZED NETWORK OR COMPUTER ACCESS OR VIRUSES. WORMS OR OTHER HARMFUL OR UNAUTHORIZED SOFTWARE OR HARDWARE 13 LlMITA TION OF LlABILITY. (a) NUMERICA SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCillENTAL, SPECIAL OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS. OR BUSINESS INFORMATION, OR FOR BUSINESS INTERRUPTION, PERSONAL INJURY OR ANY OTI IER LOSSES UNDER ANY LEGAL THEORY INCLUDING CONTRACl, TORT AND/O R STRICT PRODUCT LIABILITY) ARISING FROM. OR RELATING TO, TillS AGREEMENT, AND ANY ATTACHMENT, OR THE CITY'S USE OR INABILITY TO USE OR ACCESS LAW ENFORCEMENT DATA ON LUMEN, I:WFN IF NUM(:.RICA liAS BEEN ADVISED OF TilE POSSIBILITY OF ANY SUCH DAMAGES OR LOSSI:.S (b) NU\IfERICA WILL ~OT BE RESPONSIBLE fOR ANY DElAY OR r AlLURE 11\ PERFORMANCE FR0\1 ANY CAUSE INCLUDING, BUT NOT LIMITED TO. LIABILITY OR DAMAGES ARJSING FROM TECHNICAL FAJLURE OR DATA CORRUPTIOI' ll\ NO EVEKf WILL NUMERJCA BE RESPONSIBLE FOR ANY DAMAGES ARISING OUT ERRONEOUS. INCOMPLETE, OR ALLEGEDLY MISLEADING DATA ACCESSED THROUGH LUMEN, OR ANY NEGLJGENCE OR RECKLESSNESS IN THE COMPlLATIOl\ OR TRANSMISSIOl\ OF DATA THROUGH THE LUMEN SYSTEM 14. IND EPENDENT C ONTRACTOR. The Parties agree that Numenca is an mdependent contractor for purposes of this Agreement. Ne1thcr l\ umenca, nor any of itS authorized agents, shall be construed as employees of the C1ty. I 5. NO THIRD PARTY BENEFIClARJES. This Agreement is made l>Oiely for the benefit of the Parties, and the Parties expressly agree that nothmg in this Agreement is mtended. no r will be deemed, to confer nghtS or remedies upon any person or legal entity not a party to this Agreement. includmg. but not hm1ted to, third-pany law enforcement agencies which may obtain access to the City's Law Enforcement Data through Lumen . 16. APPLICABLE LAW. All questions concerning the construction, validity. enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with th e internal laws of the State of Colorado, Without regard to the principles of confl1cts of law thereof 17 TERMINATION Th1s Agreement may be terminated (I) 1mmed1atcly, upon the mutual agreement (in writing) of the Panics; (2) upon thiny days wriuen notice by either Party, or (3) 1mmediatel), upon Numerics's reasonable dcterrnmation and wrmen noucc to the City that the Cit) has matenally violated the terms of any of the Paragraphs 9- 1 I 18 NOTICE. (a) Any and all notices required under this Agreement shall be m writing and shall be. (i) delivered personally; (ii) ma1led, postage prepaid, certified mrul. return receipt requested, (iii) delivered via a nauonally recognized overnight couner service; or (iv) delivered vta facs1m1le transmiSSIOn with regular mail to follow, addressed to the Party as set forth belo\\. For The Cit) of Wheat Ridge (the Ciry)· Attn D1v1sion Ch1ef Joe Cassa Address: 7500 West 29th Avenue Wheat R1dge, CO 80033 Phone: 303.235.2933 Page 4 of6 For Numenca Corporation Aun. JeffPoore Address 4850 Hahns Peak Drive. Suite 200 Loveland, CO 80538 Phone: 970-612-23 I I nurnerico racsintile 303 .235 .2933 Facsimile: 970-461-2004 (b) All notices personally deltvered shall be deemed given as oflhe date of personal dehvel) All notices mailed shall be deemed delivered as of two busmess da)'S after lhe date postmarked All nouces deemed delivered b) ovem1ght couner, shall be deemed delivered as of one business day after date deposned Wllh such semce. All notices sent \'ia facsimile shall be deemed dehvered as of the date that the transmiSSIOn IS sent and confumed as rece1ved 19 L"'D EMNITY. To lhe extent pemuned by lav.. ifpermmed at all ,lhe Cit) shallmdemmfy. defend, and hold Numenca and its officers , agents and employees harmless from and against any and all claims arlSlng out of or relaung to this Agreement including, but not limited to any and all claims by third parties or City employees based on the City'~ use of Lumen or data provided lhrough Lumen ; any and all cla1ms ar1sing out ofNumerica's access to Law Enforcement Data m accordance with lhe terms of this Agreement; and any and all clalJTlS based upon U S. and fore1gn country expon laws and regulauons, regardless of whelher such cla1ms were foreseeable . Numenca shall mdemnify. defend. and hold harmless the Cny agamst any and all claims arismg out of or related to a breach by Numenea of any reprc:scntauon or warrant) made in lhe Agreement The indemnified Party will promptly notify the mdemnifymg Part) of any and all such chums and w1ll reasonably cooperate w1lh the mdcmmfymg Part) w1lh lhe defense and/or settlement lhcreof, which defense andlor settlement shall be controlled b) lhe mdemnifying Part), prO\ 1ded lhat, 1f an) settlement requ1res an affirmauve obltgauon of, results m any ongomg llabll1t) to or prejudices or detnmentally Impacts lhe tndemnilied Party in any wa)', then such settlement shall requ1re the mdemnilied Party 's wntten consent (not to be unreasonably withheld or delayed) and lhe indemnified Pany rna) have Its own counsel in attendance at all proceedings and subStantive negotiations relaung to such claim . 20. EXPORT CO NT RO L. Lumen may be subJeCt to expon controls under U S and foreign laws and regulations The City is solely responsible for ensunng comphance wilh U.S and foreign export control laws and regulations . The C1ty hereby covenants lhat it will not transfer, expon or re-export, directly or indirect!>, an) Lumen technology to any prohibited country as spec1fied by U.S. expon controls mcluding . but not limited to, any country to which lhe United States has embargoed applicable goods or to an) prohibited person, enuty, or end-user as specified by U S expon controls mcludJng, but not hmited to, an)one on the Unned States TreasW) Department 's list of Specilicall> Designated Nauonals, the U S Commerce Oepanment's Denied Persons List or the L S State Department's List of Statutorily Debarred Part1es . 21 GENERA L PROV IS IONS Th1s Agreement 1s lhe complete and exclusive statement of lhe agreements between lhe Parties, and lh1s Agreement supersedes all prior proposals and understandings, oral and wrmcn, relaung to the subJect maner hereof. Descriptive hcadmgs in lhis Agreement are for convenience on!) and shall not control or affect the meaning or construction of any provisions of thiS Agreement Numerics shall not be liable for any failure or delay caused by events beyond the control ofNumerica The City agrees that any breach of lhis Agreement or the Lim1tcd License granted herein may cause Numerica Irreparable IDJUI) for which lhere may be no adequate remedies at law, and lhat Numerics w1ll be entitled to injunctive rehef, 1n add111on to olher remed1es avrulable to it 22 WATVE R AND SEVERABI LITY. The ~ruver of an) Part) hereto of a breach or default of any of lhe provisions of lh1s Agreement by another Party shall not be construed as a wa1ver of any succeedmg breach of lhe same or olher provisions of this Agreement, nor shall any delay or omiSSIOn on lhe part of any Party hereto to exercise or a\ ail itself of any right, power, or privilege lhat it has or may have hereunder, operate as a waiver of any such right, power, or privilege by such Party If any of the provisions of th1s Agreemen t are held for any reason to be invalid, illegal , or unenforceable, the enforceabtlity of the remaining provisions shall not be impaired thereby . Page 5 of6 nurnerica IN WITNESS WHE REOF, the Parties ha\'e caused this Agreement tO be s1gned b) their duly authonzed representauves. City of Wheat R1dge Numenca Corporat ion Date July 22, 2013 Date Printed Name Jerry DiTuJho Printed Name Jeff Poore Title Title President Signature L DN Signature 3225 0 187.4 Page 6 of6