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Home My WebLink AboutDUNCAN ARKING TECHNOLOGIES-2004 N-2004-078 . INSURANCE NOT ON fiLE WORK MAY lli1l PROCEED CLERK OF COUNCIL DATE: 1~lÞ-vf t t~A L~. 5 .. Iv'at:} HARDWARE AND SOFTWARE MAINTENANCE AGREEMENT THIS AGREEMENT is entered into this l '5'-r\.day of j ~ C , 2004, by and between Duncan Parking Technologies, a Delaware Corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"). Recitals: A. The parties entered into Agreement #A-2002-163, dated August 19,2002, (hereinafter "said Agreement") by which Consultant provided parking meter equipment, software and hardware and software support. B. The parties wish to provide for hardware maintenance for the Hand-Held Units and software support for the parking meter system for a two year term. 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 A. . Maintenance. Consultant shall provide remedial maintenance services for the Hand-Held Units (hereinafter "Units"). In the event of defects with respect to the Units, Consultant shall evaluate and replace such defective device. When Units are returned to Consultant for service, City will provide detailed information regarding the nature, scope and symptoms associated with the problem. Consultant reserves the right to replace any Unit with equipment of equal or greater value. Such replacement equipment shall work in substantially the same way as, and be compatible with, existing equipment used by the City. Consultant may remove the replacement equipment and return the original equipment to City, so long as the original equipment is in good operating condition. The following services do not fall within the scope of this maintenance agreement: . . . B. a. Maintenance, repair or replacement of parts resulting from causes other than ordinary use, including but not limited to accident, neglect, misuse, fault or negligence of City, or caused by the application of software not provided by Consultant b. Furnishing or accessories or consumable supplies, such as ribbons, cards, paper, forms, tapes, discs, cables, batteries or carrying equipment and RF receiver cable. . Software. Consultant shall provide "Software Support Services" as set forth below: Consultant shall provide a qualified technical contact person at Consultant's facilities for purposes of providing verbal telephone support to resolve operating problems with Consultant's software. Such support shall be available from 8:00am to 5:00 pm, Central time, Monday through Friday (excluding holidays), and may be conducted by on-line remote diagnostics communicating directly with the Network. City will be provided with one (1) copy (in object code format) of each Enhancement for Consultant's software. As new releases of Consultant's software are developed and distributed, Consultant will provide City with appropriate online help text, as the same are published and generally distributed by or for Consultant. . . 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services the following fees: Extended Software Maintenance through April 1, 2006 Extended Hardware Maintenance through April 1, 2006 $1,440.00 3,747.84 The total sum to be expended under this Agreement shall not exceed $5,200.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of a proper invoice for annual Maintenance Fees. 3. TERM This Agreement shall commence on April 1, 2004 and terminate on March 31, 2006, unless terminated earlier in accordance with Section 12, below. The term ofthis Agreement may be extended upon a writing executed by the Executive Director of the Community Development Agency and the City Attorney. 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, ajoint 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 Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (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. 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. 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: Executive Director of the Community Redevelopment Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-5363 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: Duncan Parking Technologies, Inc. 340 Industrial Park Road P.O. Box 849 Harrison, AR 72601 Telefacsimile (870) 741-2423 Attn: Mr. Paul Descombes 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 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 represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. 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, the 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 and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. 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 the City upon thirty (30) days written notice 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. 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 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 its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. I . ' " 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 ofthe 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, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA ~ ~AM City Manager pATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney ~. (1-: , . 7-."..' ~~~~ Sh~~J;C( .~~C." c:;/ Assistant City Attorney APPROVED AS TO CONTENT: CONSULTANT ~'f J P. REEKS TIN xecutive Director Community Development Agency Ì) DEBBIE HENRY Director of Finance and Administration Tax ID# 141 002/002 ~ uU,l ÞA TI! (IIIIIIIOIY'I'W) 07/H/2004 S ICATE IS IS5U A e 0 0 TIO ONLY AND CONFERS NO RIGHTS UPON THE CERTIFlCA'Œ HOLDER. THIS CERTlFICA TG DOES NOT AMEND EXTEND OR ALTER 1HE COVERAGE AffORCED SY THE POÓCIES BELOW. . ~ 07/15/2004 THU 14:08 FAX 714+565 4020 CITY OF SANTA ANA r..1,,,,,.a.,¡.¡:,,IJ ...",..~ UI/~~/'UU~ UI.'U rñA 91U I~¿ ~uu~ CERTIFICATE OF LJABILITY INSURANCE ACORD 1M (810) 741-lJOS Uni~ed Insurance Agency 2104 1st Na~;Dnal Dr;ve P.O. Box 12!i1 Harr;san, AR 72602-1258 INSIMED Duncan Parking Tec no og es I 340 Indus~r;al Park Road Harri5~. AR 72601 FA 870)741-9609 IN$URERS AFFORDING COVERAGE INSURIiIU; Chubb Group of Insurance Co I~ø: IN$U~E!R c: (V, ðVtJ ~-O7~ INSURER tt. INauRER E: NAlC# COVERAGES POLICIES OF INSURANCE USTED BELO IiAVEi Bfi&N Issue~ TO THE INSU~OO NAM~D AeO\Æ oR 11-IE POLICY PERIOD INDICATED. NOTWI OIN ÞNr IœQUIReM~, Tl!!1W OR COMDI'l"lON OF AN'( CCNT'RACT DR OTHER DOcut.tErn'VVI'I'H RESPECT TO WHICH THIS ceRll~ICATE MAY BE ISSUED OR MAY PERTAIN. 'THE IIIISURANCE AFFORDED BY 11-\E POUCIES DESCRIBED H~N IS SUBJECT TO ALL THE ìERMS. EXCLUSIONS MID CONDITIONS OF SUCH flClJCles, AGGREGATE LIMITS SHOWN MAY HAve SEEN REDUCED BY P~IO CLAIMS. CANCELLATION IIHOUI.C AIl'I of T141! A!IOW I:lIU:CÞlaED ÞOIJCIIP BE CANÇELU¡D IIEFCRIÕ-no¡, gplRA11ON tI,,~ 'mI!REOF. THE ISSùlNG INSURER WIll. ENtlEAIItIR TO MAIL J1l- þjl,YI! WM'TI!N 1o0~ TO TtU! éltmP'lc.A. '!1æ HoLlIER PAIIED TO THE LHT. BUT FAlWIE TO NAIl. SUCH NO~ SffAlLIMPOSE NO OB~IØATIOM OR Ul'DILI1Y 0,,&1>1:( IaMD UPON THa It. mil ACleNT& o~ RÐl!NT411VES. AUTHORIZED REPRESENTA Debra J(ee~ POLIC'f' NI8BER CATE DA'I1i! :3 579-9S-pZ 06/20/2004 D6/20nOOS T'I'PE Of' 'IIØiUfW¡IŒ GSERAL LlARJn' X CCMMeJU:IAL ~ IJABlLIT'I' CLANS M\DE [!] OCCUR E/IoCH Cr;¡CL/R1IU!NCE A GeNEAAL AGGRliGA.Te S pAOOU c:TS . COP\IPIOP Aaa f¡ 06/20 200S D ~tJ~ 06/20/2004 OWNTOWN D£VELOPM£N DIVISION JUL ,.~. 2Uli CITY OF SANTA A ~ CCM8IþlEC SINGU! ~lNrr (E8~1 NfV AL1TD AL(. DWIIII!!II AUTQI BODIL"I' IN.UfI''( (p.~) A 3CHeDuLeD AIJI'CS X HIUD A1JTOS X Ncll-OWNEQ AI1T03 IOCI\,"I' IWURY IPI'r -*"mj PROPERlY c.wAGE II'« -=~n¡ I;AIWSE. IJAØlU'n' ANr AUTe AUTO ONL"I'-EAACCloeNT I OTH8~ THAN ALn'CI OM. "1': ~SS/UIIBREU.A IJAØUTY X OOOUR 0 CUUUSIWJf! 3579-96-0Z 06/20/2004 O&/ZO/2005 ,,"CH OCCUAIŒN~ AGGREGAYE A DEO\Jc1leLE RErENTJON S WIOIUCI!RS œMPI!NS&11ON ANII EIIPLOVI!RS' UABlurt A ~~~~~OVT1VE IfY8&. d8I;Qi¡oo omdoor ~cw. PROvISIONS b;k¡w 1352-31-2& 06/20/2004 06/20/2005 DE9CI8PTION OF OPERAl1OHS LOCATIO I rIt ØoII:IoORSB8ENT I Sl"£CIAL PftOI/ISIONS ~' . ,,' / /'. ",/ ') ~/ /:[-1 ,..-- . A.A.-1_A ,.7'-,"'-;:'Y"'-V A .....w I / CERTIFICATE HOLDER . City of Santa Ana Aun: Ken Silva Downtown Developllll!lR't Divis;on 30S East 4t~ Stpeet- S~e 201 Santa Ana, CA 92701 ACORD 25 (2001/0&) FAX: (714)565-4020 UIIIT'II S " ~ACC S 1\00 .. S I 1 000 DO 50,00 J,OO 1 OðO,OO 2,000,00 2 000 00 I . 1 000 00 s s I 5 5 000 00 s 5 000. 001 S S I 500 00 500,00 500 DO