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HomeMy WebLinkAboutTriTech, Inc. 1City of Santa A" -a a + Clerk of the Cowicil AGREEMENT TERMINATION FORM Please complete this form when the atfached agreement and all amendments (if any) are no longer in effect. Return form to the Clerk of the Council Office (M-30). Call 647-6520 if you have any questions. The agreement with Trifech Software COTC Office Use No.( : A-2008-331 was completed on 91 ijand final payment has been made. AA amendments. Use space below if needed.) -A -- R -fie�q$�i6a A- Iggq - 201 ---- Department:t A-[449-1q6 A-Z001-2SS - 2040 -0l$ A - 26o j- -igl -I Phone/Pxf.: <— A-2.000-Q2 11-20a2-203 A -zoo3-25 Signature: F � - 2.005 -014- T � A- 20o4 Dole: ReV[sed 08-23-10 A-2001-218 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this �3 day of , 2001, by and between TriTech, Inc. (hereinafter "Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having skill and knowledge in the field of computer software support and maintenance for a VisiCAD Computer -Aided Dispatch System (annual software support and maintenance) for the City's Fire Department. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A, TriTech Support Services Renewal, to this Agreement, and in accordance with the Software Support Agreement between the City and Consultant the terms and conditions of which is incorporated by reference in such Exhibit A as though set forth in full. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement, shall not exceed $67,801.00 during the term of this Agreement, provided that the City does not increase the number of software licenses on which the annual support fee is based. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City, subject to City accounting procedures. 11 E 3. TERM This Agreement shall commence on the date first written above and terminate on October 31, 2002, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Fire Chief and the City Attorney, and Consultant. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Due to.the nature of the work to be performed by Consultant for City, insurance shall not be required — work is performed off site. 6. INDEMNIFICATION 6.1 Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability to the extent of Consultant's fault or negligence: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 6.2 The total liability of Consultant for any claim or damage arising under this Agreement or renewals thereof, whether in contract, tort, by way of indemnification or under statute shall be limited to (i) direct damages which shall not exceed the Software Support fees paid under this Agreement by the City to Consultant for the twelve (12) month term during which the cause of action for such claim or damage arose or (ii) in the case of bodily injury or property damage for which defense and indemnity coverage is provided by Consultant's insurance carrier(s), the coverage limits of such insurance. 6.3 IN NO EVENT SHALL TRITECH BE LIABLE WHETHER IN CONTRACT OR IN TORT FOR LOST PROFITS, LOST SAVINGS, LOST DATA, LOST OR DAMAGED SOFTWARE, OR ANY OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR NON-USE OF CONSULTANT'S SOFTWARE, OR OTHERWISE RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER CONSULTANT HAS NOTICE OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. • 0 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Fire Chief, Santa Ana Fire Dept. 1439 S. Broadway Santa Ana, California 92702 telefacsimile (714) 647-5779 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: TriTech Software Systems 9860 Mesa Rim Road San Diego, CA 92121 Attn: Michael Nabors Telefacsimile (858) 799-7010 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours 4 after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement and Exhibit A represent the complete and exclusive statement between the City and Consultant, and supersede any and all other agreements, oral or written, between the parties with respect to the provision by Consultant of annual software support services to the City. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City, which shall not be unreasonably withheld, and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void, except in the case of merger or acquisition by a third party of all or substantially all of the assets or stock of Consultant. Any permitted assignee under this provision shall execute and agree to be bound by the terms and conditions of this Agreement. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by either party upon thirty (30) days written notice to the other party of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. "Work Product" shall not include TriTech software, documentation or updates to the TriTech software, which are licensed to the City. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. • 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, th parties hereto have executed this Agreement on this the :5 = b date of ��� , 2001. ATTEST: Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney BY: Lisa E. Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: ABC.- cu. Marc Martin, Fire Chief City of Santa Ana CITY OF SANTA ANA Miguel A. Pulido Mayor APPROVED AS TO CONTENT: -yzc z V David N. Ream City Manager 3 CONSULTANT TriTech SO wadSystems Christopher D. Maloney President 0 0 TriTech Support Services Renewal Client agrees to renew its Agreement for VisiCADTM Support Services according to the terms herein and the terms of the current Software Support Agreement, which terms are incorporated by reference herein as though set forth in full. This Support Services Renewal Agreement must be signed and returned by October 1, 2001. The effective date of this support renewal is November 1, 2001. The extended support term expires on October 31, 2002. Client desires to participate in TriTech's early support renewal program. Client agrees to pay its support fee by October 1, 2001 in order to be eligible for one of the following payment options (check one): Single annual payment of $66,125. (includes a 2-'/2% discount [discount does not apply to annual Escrow fees] if paid by October 1, 2001). Four (4) quarterly payments of $16,950.25 totaling an annual support fee of $67,801. (the first payment is due by October 1, 2001). NOTE: Late payments of more than one quarterly payment in a support year will cause the loss of the quarterly payment option for the following support year, and require payment in full of all remaining quarterly payments upon receipt of invoice. Client acknowledges that failure to meet the early payment requirements will result in Client being invoiced for the full annual standard support fee and Client will lose the option to have a discount or to make quarterly payments. Please note that for convenience, we have enclosed an invoice for the full annual amount. When you remit payment with this signed renewal notice for either the annual payment with discount, or the first of four quarterly payments by October 1, 2001, we will adjust the invoice accordingly. Based upon your existing Software licenses, the annual support fee is $67,801. Payment of this fee extends coverage of the original software license and/or support agreement, through October 31, 2002. Options Please include the following options into the cost of the support agreement. The cost for selected options will be added to the final cost of the support agreement and reflected in a revised invoice. ❑ Please add TriTech Annual User Group Admission Passes into the support renewal fee ($500 (US)/person). ❑ Please add airfare charges for each attendee to the TriTech Annual User Group to the support renewal fee (Note — these must be calculated individually based upon the location where travel will begin — TriTech will provide a quote of the projected cost) ❑ Please include a Maintenance Pool in the amount of $ (US dollars) into the cost of my support agreement. The Maintenance pool may be utilized based upon the authorization of the Client for non -covered support services, hardware upgrades, operating system or database upgrades, and TriTech Software modules or services. Payment will be as follows: ❑ Include the Maintenance Pool cost in the annual fee and maintain any applicable credits on my TriTech Account. ❑ Include the Maintenance Pool cost in the overall support contract cap, but invoice the Client individually for the deliverables authorized. ❑ Please include a quote for adding the following to the support agreement: EXH1131T i This Agreement for TriTech Support Services is based upon the following Software licenses: Software Number of Licenses Value VisiCAD TM Server Software 1 $23,500 VisiCADT' Back-up Server Software 1 $1 1,000 EMS Workstation Software 6 $88,800 EMS VisiLite Software 1 $ 475 VisiCAD FireServer Software 1 $23,500 VisiCAD Fire Redundant Server Software 1 $1 1,000 Fire Workstation Software 6 $88,800 Fire VisiLite Software 1 $ 475 E911 Interface Software 1 $13,000 Alpha -Numeric Paging Interface Software 1 $ 4,500 MST Interface Software 1 $ 4,500 SIMMS Radio Interface Software 1 $14,000 Enhancement for SIMMS II Interface License 1 $45,000 CAD to Station Printer Software l $ 6,250 CFIRS Interface Software 1 $ 6,500 ProQA Interface Software 1 $11.600 Other Miscellaneous Fees Annual Escrow Fees $ 750 ACCEPTED AND AGREED: CLIENT: Santa Ana Fire Dept. (Signature) Name Title Date TRITECH: Michael D. Nabors Vice President of Operations Date EXVj1?tT A TRITECH SoFTwAFE SYSTEMS 9800 Mesa Rlm Road San Diego, Califomia 92121 Bill To: SANTA ANA FIRE DEPT. - CITY OF attn: ANNA OLIVAREZ 1439 SOUTH BROADWAY SANTA ANA, CA 92707 VOICE 14229 DATE Note: PAGE: 1 Ship To: SANTA ANA FIRE DEPT. - CITY OF attn: ANNA OLIVAREZ 1439 SOUTH BROADWAY SAKI A ANA, CA 92101 PURCHASE ORDER NO. C SALES ID SHIPPING METHOD PA MENT TERMS REQ'D TF MASTER NUMBER QUANTITY ITEM NUMBER DESCRIPTION UOM DISCOUNT UNIT PRICE EXTENDED PRICE 1.00 4300-60 Customer Support - 11/0 1/0 1 to 10/31/02 Each $0.00 $67,801.00 $67,801.00 Represents the renewal of your annual support agreement for TriTech software and is due no later y than 10/01/01. 1 �� Subtotal Tax Freight Total $67,801.01] $O.00 $O.00 $67 80-1. 00