HomeMy WebLinkAboutDICTAPHONE CORPORATION 1G 2005
AGREEMENT TERMINATION
Please complete this form when the attached agreement is no IongWfin i &Me8,7 !--5 h 7 r a
Return form to the Sr. Deputy Clerk of the Council (M -30). Call f647 -5238 if you hove any
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was completed on /:3 `X) and final payment has been made.
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Revised 8 -7 -03
City of Santa Ana
Clerk of the Council
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CLERK OF COUNCIL
DATE:' ¡ /13/D5 CONSULTANT AGREEMENT
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THIS AGREEMENT made and entered into this ¿;{C( day of ~ ,2004 by
and between Dictaphone Corporation, a Delaware corporation (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 Cali fomi a (hereinafter "City").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
repair and maintenance of dispatch recording systems.
B. Consultant represents that Consultant is able and willing to provide such services to the
City with respect to the repair and maintenance of the equipment and/or software
included in the dispatch recording system located at the Santa Ana Fire Department at
120 W. Walnut, Santa Ana, California 92701 as more fully described in Exhibit A
hereto (the "Santa Ana Fire Dispatch System").
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any repair and maintenance services performed by
Consultant under this Agreement will be performed in compliance with applicable
industry standards.
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 maintain and repair the Santa Ana Fire Dispatch System, as set forth in
Exhibit A hereto in accordance with the terms of this Agreement and the terms provided in
Exhibit A-I (A) Maintenance Plan, to this Agreement.
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 $4,500.00 during the term of this Agreement.
b. Payment by City shall be made within thirty (30) days following receipt of proper
invoice for the repair and maintenance of the Santa Ana Fire Dispatch System.
3.
TERM
This Agreement shall commence on the date first written above and terminate on August
31,2005, unless terminated earlier in accordance with Section 12, below. The City may elect to
extend this Agreement for two additional one-year terms, on the same terms, conditions and at
the same yearly price indicated on Exhibit A hereto. Said option shall be exercised by a writing
executed by the Fire Chief 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.
INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability: arising out of claims
for personal injury, including health, and claims for tangible property damage, which may arise
ftom the direct gross negligent acts 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.
6.
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
which is disclosed as confidential. 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 oflaw; or (e) is independently
developed by the Consultant without reference to information disclosed by the City.
7.
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.
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8.
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:
City of Santa Ana Fire Department
1439 S. Broadway (M-80)
Santa Ana, California 92707
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:
Dictaphone Corporation
3191 Broadbridge Avenue
Stratford, CT 06614
Telefacsimile (203) 385-4796
Attn:
Legal Department
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 ftames, weekends, federal,
state, County or City holidays shall be excluded.
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9.
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
regarding the same subject matter. 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.
10. 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.
11.
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.
12.
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.
13.
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. 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.
14.
PROFESSIONAL LICENSES
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Consultant shall, throughout the term ofthis 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.
15.
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.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
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II
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
~~'~'-~
PATRICIAE. HEALY
Clerk of the Council
CITY OF SANTA ANA
~~
City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
~ ~
By: . ÆAAÎ~ -&
Lau a heedy (
Assistant City Attorney
CONSULTANT
DICTAPHONE CORPORATION
APPROVAL:
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(Name)~Y"re\\ fne-"pc.cn'\V\::Lc..~
Dictaphone Corporate Officer
Tax ID# 04-3506655
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EXHIBIT A-I
MAINTENANCE PLAN (CRS Products)
ASSURED PERFORMANCE PLAN (APP)
This Assured Perfonnance Plan (this "APP") sets forth the tenns for software and hardware maintenance coverage
on the Products (other than healthcare/lVS related-products) purchased, leased or rented by Customer in accordance
with the agreement by and between Dictaphone and Customer to which this exhibit is attached. All capitalized
tenns used and not otherwise defined herein shall have the same meanings assigned to such tenns in the agreement
by and between Customer and Dictaphone, to which this APP is attached.
OPTION I - STANDARD 8x5 COVERAGE
1.
Maintenance Availabilitv, For a period not to exceed five (5) years from the date of original sale, and
subject to the tenns and conditions hereof, Dictaphone Corporation ("Dictaphone") will maintain, for the
original purchaser ("Customer"), the Dictaphone supplied hardware (the "Equipment") and Dictaphone
supplied software (the "Programs," collectively with the Equipment, the "Products") covered hereby in an
efficient operating condition (subject to the limitations of licensed third party software), including software
"bug" fixes, patches, or shop repairs or overhauls if deemed necessary by Dictaphone pursuant to this
Assured Perfonnance Plan ("APP"), option (I or II) as selected by Customer. Service contemplated hereby
is on a year-to-year basis at the prevailing maintenance rate each year or as may otherwise be provided
herein, provided that the Products are placed under this APP within one year from date of original sale, and
this APP is continued in force without lapse. Any renewals or extensions of this APP beyond the initial
five year availability period described above shall be mutually agreed upon by Dictaphone and Customer.
2.
All necessary replacement parts will be furnished to Customer by Dictaphone without charge, except when
replacement is required because of (i) fire, flood or other casualty, accident, abuse, misuse, mishandling,
power line fluctuations, computer viruses unattributable to Dictaphone, or use of recording media, disks,
ribbons, printwheels, or consumables other than a type or specification recommended by Dictaphone or (ii)
use or operation with equipment, systems, peripherals or software not supplied to Customer by Dictaphone.
The labor cost for repair or replacement of record or reproduce head assemblies associated with multi-
channel recording and reproducing equipment is covered by this APP.
3.
No charges will be made for necessary service calls during Dictaphone's Nonnal Working Hours, except
when caused by the events listed above in Section 2. Dictaphone will not be obligated to provide service
outside of Dictaphone's Nonnal Working Hours unless Customer has selected Option II. Service calls after
Dictaphone's Nonnal Working Hours will be charged at Dictaphone's then standard hourly overtime rates
unless Customer has selected Option II. Nonnal Working Hours are defined as: 8:00 a.m. (0800 hours) to
5:00 p.m. (1700 hours), Monday through Friday, excluding U.S. federal holidays.
4.
Problems caused to the Products covered by this APP by (1) any non-Dictaphone software used with
Equipment by Customer or (ii) the use or operation of any equipment, systems, peripherals or software not
supplied to Customer by Dictaphone, are not covered hereunder. This includes, but is not limited to,
computer viruses unattributable to Dictaphone. Dictaphone's representative, at Customer's request, will
attempt to correct any problem contemplated by this Section and restore the Programs or Equipment
covered by this APP to original operating condition at the then current standard hourly rate.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DICTAPHONE SHALL
NOT BE LIABLE HEREUNDER FOR ANY INCIDENTAL, SPECIAL OR OTHER
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR
LOST REVENUE) OF ANY KIND.
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5.
On applicable systems, software support, maintenance upgrades, and replacement of existing Programs
during Nonnal Working Hours is included. Twenty-four (24) hour diagnostic monitoring via the Service
Our System (S.O.S.) call response feature is included. On-site response to after-hours S.O.S. calls for
Option I coverage will be during Nonnal Working Hours of the next business day.
6.
Supplies such as expendable batteries, recording media, disks, printwheels, or other consumables, such as
printer maintenance kits, are not covered under this APP.
7.
The APP rates to be charged are subject to change if Equipment is moved to a different service area.
8.
Unless otherwise specified in Exhibit A-2 to the agreement by and between Dictaphone and Customer, the
initial tenn of this APP shall be for a period of one (I) year (the "Initial Tenn") and will automatically be
renewed for four (4) additional one-year periods unless canceled by either party at the annual renewal date
by giving thirty (30) days' prior written notice. Invoices will be rendered yearly in advance and are
payable upon receipt. Additional Equipment and Programs purchased by Customer from Dictaphone may
be added to this APP under the APP option previously selected unless otherwise specified at the time of
purchase thereof.
9.
This APP may be canceled by Dictaphone if recording media, disks, accessories, attachments, or
consumables other than the type or specification recommended by Dictaphone are used, or if any
modifications are made to the Equipment and/or Programs by anyone other than authorized Dictaphone
personnel, including, but not limited to, Customer, or Customer's agents, employees, or contractors.
APP Option I (8x5) Price $ 4.331.29
(Initial Term)
Customer's initials:
OPTION II - AFTER-HOURS COVERAGE (24 by 7 Coverage)
Option II -Expands the standard Option I coverage for Equipment and/or Programs to also include:
1.
Response to emergency service calls twenty-four (24) hours a day, seven (7) days a week, including U.S.
federal holidays. An emergency service call is defined as an Equipment and/or Programs failure causing a
complete shutdown or partial shutdown that would cause the Products to operate in a degraded mode which
would not allow access to the Products for recording and/or inquiry purposes. Note: Failure of individual
work stations or their associated accessories and general maintenance are not considered an emergency.
2.
After-hours replacement of software revisions intended to correct software "bugs" so as not to interfere
with Customer's daily routine.
APP Option II (24x7) Price: $
N/A
(Initial Term)
Customer's initials:
"This Exhibit A-I(A) is made in accordance with the agreement by and between Dictaphone and Customer to
which this exhibit is attached.
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